Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.
Appears in 6 contracts
Sources: Private Equity Line Agreement (Fonix Corp), Private Equity Line Agreement (Fonix Corp), Private Equity Line Agreement (Fonix Corp)
Right of First Refusal. The Company shall notIf you propose to transfer or assign this Agreement or your interest herein or in you or the business, directly in whole or indirectlyin part, to any third party, including, without limitation, any transfer contemplated by subparagraph 11.E or any transfer described in subparagraph 11.A, you first must offer to sell to us your interest under the prior written consent same terms. In the event of a bona fide offer from such third party, you must obtain from the third-party offeror and deliver to us a statement in writing, signed by the offeror and by you, of the Investor, terms of the offer, sell, grant any option to purchase. In the event the proposed transfer results from a transfer under subparagraphs 11.A.1 through 11.A.3, or otherwise dispose your insolvency or the filing of (any petition by or announce against you under any offerprovisions of any bankruptcy or insolvency law, saleyou first must offer to sell to us your interest in this Agreement and the land, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Datebuilding, except (i) the granting of options or warrants to employeesequipment, officers furniture and directorsfixtures, and any leasehold interest used in the issuance operation of shares upon exercise of options grantedyour Restaurant. Unless otherwise agreed to in writing by us and you, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for our purchase of assets in the acquisition event of a transfer that occurs by a transfer under subparagraphs 11.A.1 through 11.A.3, insolvency or bankruptcy filing will be established by a qualified appraiser selected by the Company of a Person parties and in accordance with the price determination formula established in subparagraph 14.B (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not formula that includes the value of any goodwill of its stockholders'the business) securitiesin connection with an asset purchase upon expiration. In addition, unless (A) otherwise agreed to in writing by us and you, the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financingtransaction documents, which Subsequent Financing Notice shall describe in reasonable detail we will prepare, will be those customary for this type of transaction and will include representations and warranties then customary for this type of transaction. If the proposed terms parties cannot agree upon the selection of such Subsequent Financingan appraiser, a Judge of the amount United States District Court for the District in which the Authorized Location is located will appoint one upon petition of proceeds intended either party. You or your legal representative must deliver to be raised thereunder, us a statement in writing incorporating the Person with whom such Subsequent Financing shall be affected, appraiser’s report and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not all other information we have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its requested. We then have 45 days from our receipt of the Subsequent Financing Notice statement setting forth the third-party offer or the appraiser’s report and other requested information to accept the offer by delivering written notice of its willingness acceptance to enter into or otherwise provide (or to cause its designee to provide), subject to completion you. Our acceptance of mutually acceptable documentation, financing to any right of first refusal will be on the Company on substantially the same price and terms set forth in the Subsequent Financing Notice. If the Investor shall fail statement delivered to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Noticeus; provided, that the Company shall provide the Investor with a second Subsequent Financing Noticehowever, and the Investor shall again we have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated substitute equivalent cash for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified noncash consideration included in the Subsequent Financing Notice.offer. If we fail to accept the offer within the 45-day period, you will be free for 60 days after such period to effect the disposition described in the statement delivered to us provided such transfer is in accordance with this Paragraph 11. You may effect no other sale or assignment of you, this Agreement or the business without first offering the same to us in accordance with this subparagraph 11.F.
Appears in 5 contracts
Sources: Franchise Agreement (Diversified Restaurant Holdings, Inc.), Franchise Agreement (Diversified Restaurant Holdings, Inc.), Franchise Agreement (Diversified Restaurant Holdings, Inc.)
Right of First Refusal. The If at any time and from time to time during the Exercise Period of this Warrant, the Company shall not, directly proposes to issue or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant offer for sale Common Stock or any option to purchase other class or other disposition) any series of its equity or equity-equivalent securities or those securities convertible into equity securities, the Company shall upon each such occasion at least thirty (30) days prior thereto send written notice thereof to the holder of its Affiliates this Warrant specifying (as defined in Rule 405 under a) the Securities Actdate on which the proposed issue or sale shall take place, (b) in any transaction that is intended the number and kind of securities proposed to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options issued or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Companysold, (iic) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by or exercise price thereof, and (d) any prospectus, offering memorandum or other material describing the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (securities and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financingoffering, including without limitation, the amount of proceeds intended financial statements and other information delivered or to be raised thereunderdelivered to offerees of the proposed issue or offering. Simultaneously therewith, the Person with whom such Subsequent Financing Company shall offer to the holder the right to acquire the securities proposed to be affectedissued, and attached at the proposed sale or exercise price thereof, in an amount equal to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified proportion that the Company by 5:00 p.m. (Salt Lake City time) on number of shares of Stock underlying this Warrant bears to the fifth (5th) Trading Day after its receipt total number of shares of the Subsequent Financing Notice Company's equity securities that are outstanding, on a fully diluted basis, as of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Noticesuch date. If the Investor holder of this Warrant shall fail to notify the Company of its intention to enter into participate in such negotiations issue or offering within fifteen (15) days after receipt of the Company's notice of issue or offering, or if such time periodholder shall have notified the Company of its intention to participate but the total number of shares proposed to be issued or sold which such holder desires to acquire shall be in the aggregate less than number of shares the holder may purchase, then the Company may effect offer such securities which shall not have been subscribed for by the Subsequent Financing substantially upon the terms and holder of this Warrant, to the Persons (or Affiliates of such Persons) set forth other offerees in the Subsequent Financing Notice; provided, that proposed issue or offering. If the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the holder exercises its right of first refusal set forth above to purchase securities in such issue or offering, the holder shall participate in the closing thereof with respect to the securities subscribed for by it at the same time, in the same manner and on the same terms and conditions as the other purchasers in such offering. If the purchase or exercise of the securities in such offering shall change or otherwise be adjusted prior to closing, then on each such occasion, the Company shall again offer to the holder of this Warrant the right to purchase such securities upon such revised terms and conditions exercisable by notice to the Company within ten (10) days after receipt of written notice of the revised terms thereof in the same manner as aforesaid. The rights established by this Section 6.13 12 shall have no application to any of the following:
(a)i) the issuance of securities amounting to or exercisable for up to 10% of the Company's fully diluted outstanding equity pursuant to options or purchase rights granted under the Company's employee incentive or option plans;
(ii) the issuance of securities of the Company or any subsidiary in connection with a merger or consolidation or an acquisition by the Company or such subsidiary which has been approved by the shareholders;
(iii) securities issued pursuant to any rights or agreements including, if without limitation, convertible securities, options and warrants, provided that the Subsequent Financing subject rights established by this Section 12 applied with respect to the initial Subsequent Financing Notice shall not have been consummated for any reason on sale or grant by the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Company of such Personrights or agreements; or
(iv) identified any securities that are issued by the Company in a firmly underwritten public offering registered under the Subsequent Financing NoticeSecurities Act.
Appears in 4 contracts
Sources: Warrant Agreement (World Wide Magic Net Inc), Warrant Agreement (World Wide Magic Net Inc), Warrant Agreement (World Wide Magic Net Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without Phage hereby grants to each Purchaser the prior written consent right of the Investor, offer, sell, grant any option first refusal to purchase, or otherwise dispose purchase its pro rata share of (or announce any offer, sale, grant all or any option to purchase or other disposition) part of any of its equity or equity-equivalent securities or those of its Affiliates New Securities (as defined in Rule 405 this Section 9.1) which Phage may, from time to time, propose to sell and issue. A Purchaser's pro rata share, for purposes of this right of first refusal, is the ratio that the sum of the Units held by such Purchaser to the sum of the total number of Units as set out opposite of each Purchaser's name on Schedule I attached to this Agreement.
(a) Except as set out below, "New Securities" will mean any shares of capital stock of Phage including Common Stock and Preferred, whether now authorized or not, and rights, options or warrants to purchase said shares of Common Stock or Preferred, and securities of any type whatsoever that are, or may become, convertible into said shares of Common Stock or Preferred. Notwithstanding the foregoing, "New Securities" does not include (i) the Shares and the Conversion Stock, (ii) securities offered to the public generally pursuant to a registration statement or pursuant to Regulation A under the Securities Act, (iii) securities issued in any transaction that is intended to be exempt from the registration requirements acquisition of another corporation by Phage by merger, purchase of substantially all of the Securities Act assets or other reorganization whereby Phage or its shareholders own not less than fifty-one percent (a "Subsequent Financing"51%) of the voting power of the surviving or successor corporation, (iv) shares of Phage's Common Stock or related options exercisable for a period of 180 days after the Effective Date, except (i) the granting of options or warrants such Common Stock issued to employees, officers and directorsdirectors of, and the issuance of shares upon exercise of options grantedconsultants, under customers, and vendors to, Phage, pursuant to any stock option plan heretofore or hereinafter duly adopted arrangement approved by the CompanyBoard of Directors of Phage, (iiv) shares stock issued upon exercise pursuant to any rights or agreements, including without limitation convertible securities, options and warrants, provided that the rights of any currently outstanding warrants and upon conversion first refusal established by this Section 9.1 apply with respect to the initial sale or grant by Phage of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3such rights or agreements, (iiivi) Put Shares, (iv) shares stock issued in connection with any stock split, stock dividend or recapitalization by Phage.
(b) In the capitalization or creation event Phage proposes to undertake an issuance of a joint venture with a strategic partner New Securities, it will give each Purchaser written notice of its intention, describing the type of New Securities, and the price and terms upon which Phage proposes to issue the same. Each Purchaser will have ten (a Person whose business is primarily that 10) days from the date of investing and selling receipt of securities shall not be deemed a strategic partner), (v) shares issued any such notice to pay part or all agree to purchase up to the Purchaser's respective pro rata share of the purchase price such New Securities for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) price and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth specified in the Subsequent Financing Notice; provided, that notice by giving written notice to Phage and stating therein the Company shall provide quantity of New Securities to be purchased.
(c) In the Investor with event a second Subsequent Financing Notice, and the Investor shall again have the Purchaser fails to exercise such right of first refusal set forth above in this Section 6.13 within said ten (a)10) day period, Phage will have ninety (90) days thereafter to sell or enter into an agreement (pursuant to which the sale of New Securities covered thereby will be closed, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice at all, within sixty (60) Trading Days after days from the date of said agreement) to sell the initial Subsequent Financing Notice New Securities not elected to be purchased by Purchasers at the price and upon the terms no more favorable to the purchasers of such securities than specified in Phage's notice. In the event Phage has not sold the New Securities or entered into an agreement to sell the New Securities within said ninety (90) day period (or sold and issued New Securities in accordance with the Person foregoing within sixty (60) days from the date of said agreement), Phage will not thereafter issue or an Affiliate sell any of such Person) identified New Securities, without first offering such securities in the Subsequent Financing Noticemanner provided above.
Appears in 4 contracts
Sources: Securities Purchase Agreement (Phage Therapeutics International Inc), Securities Purchase Agreement (Phage Therapeutics International Inc), Securities Purchase Agreement (Phage Therapeutics International Inc)
Right of First Refusal. The If the Company shall not, directly or indirectly, without consummates any Offering pursuant to this Agreement prior to the prior written consent end of the InvestorTerm, offerfrom the date hereof until the 12-month anniversary following the consummation of the first Offering (if any), sell, grant any option to purchase, the Company or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its subsidiaries decide to raise funds by means of a public offering or a private placement or any other capital-raising financing of equity or (other than an at-the-market offering), equity-equivalent linked or debt securities using an underwriter or those placement agent, ▇▇▇▇▇▇▇▇▇▇ (or any affiliate designated by ▇▇▇▇▇▇▇▇▇▇) shall have the right to act as sole book-running manager, sole underwriter or sole placement agent for such financing. If ▇▇▇▇▇▇▇▇▇▇ or one of its Affiliates (as defined in Rule 405 under affiliates decides to accept any such engagement, the Securities Act) in any transaction that is intended to be exempt from the registration requirements agreement governing such engagement will contain, among other things, customary provisions for customary fees for transactions of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers similar size and directors, nature and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes provisions of this clause (v)Agreement, shall not include an individual or group of individuals) including indemnification, which are appropriate to such a transaction and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers mutually agreeable to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing parties. Notwithstanding anything to the Company on substantially the terms set forth contrary in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time periodthis Agreement, the Company may effect during the Subsequent Financing substantially upon Term enter into potential partnering or other strategic transactions that may include the terms and to the Persons (or Affiliates issuance of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing NoticeSecurities, and ▇▇▇▇▇▇▇▇▇▇ shall not have a right of first refusal to be an advisor or agent for such transaction and such transaction and the Investor related issuance of Securities shall again have be excluded from the right of first refusal set forth above and exclusivity provisions of this Agreement and no amounts shall be due and payable to ▇▇▇▇▇▇▇▇▇▇ in this Section 6.13 (a)connection with any such transactions or related issuances; provided that any such issuance shall only be to a entity which is, if itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the Subsequent Financing subject business of the Company and shall provide to the initial Subsequent Financing Notice Company additional benefits in addition to the investment of funds, but shall not have been consummated include a transaction in which the Company is issuing Securities primarily for any reason on the terms set forth purpose of raising capital or to an entity whose primary business is investing in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticesecurities.
Appears in 4 contracts
Sources: Exclusive Agency Agreement (Diffusion Pharmaceuticals Inc.), Exclusive Agency Agreement (Diffusion Pharmaceuticals Inc.), Exclusive Agency Agreement (Diffusion Pharmaceuticals Inc.)
Right of First Refusal. The Company shall notagrees that, directly if, for the period ending eighteen (18) months from the Closing Date , the Company or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except subsidiaries: (i) decides to finance or refinance any indebtedness, the granting Underwriter (or any affiliate designated by the Underwriter) shall have the right to act as sole book-runner, sole manager, sole placement agent or sole agent with respect to such financing or refinancing; or (ii) decides to raise funds by means of options a public offering (including at-the-market facility) or warrants a private placement or any other capital raising financing of equity, equity-linked or debt securities, the Underwriter (or any affiliate designated by the Underwriter) shall have the right to employeesact as sole book-running manager, officers sole underwriter or sole placement agent for such financing. If the Underwriter or one of its affiliates decides to accept such engagement, the agreement governing such engagement (each a “Subsequent Transaction Agreement”) will contain, among other things, provisions for customary fees for transactions of similar size and directorsnature, but in no event will the fees be less than those outlined herein, and the issuance provisions of shares upon exercise this Agreement, including indemnification, which appropriate to such transaction. Notwithstanding the foregoing, the decision to accept the Company’s engagement under this Section 4(p) shall be made by the Underwriter or one of options grantedits affiliates, under any stock option plan heretofore or hereinafter duly adopted by a written notice to the Company, within ten (ii10) shares issued upon exercise days of any currently outstanding warrants and upon conversion the receipt of any currently outstanding convertible preferred stock the Company’s notification of its financing needs. Notwithstanding the foregoing, in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued the event that a tier I investment bank proposes to act as an underwriter or a placement agent in connection with the capitalization a proposed public offering or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition private placement by the Company of a Person (whichin the United States, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by then the Company of its (and not of any of its stockholders') securities, unless (A) Underwriter agrees to have such bank lead the Company delivers to transaction with the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt Underwriter being part of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticesyndicate.
Appears in 4 contracts
Sources: Underwriting Agreement (Wearable Devices Ltd.), Underwriting Agreement (Wearable Devices Ltd.), Underwriting Agreement (Wearable Devices Ltd.)
Right of First Refusal. The Company Each Investor shall nothave ten (10) Business Days from receipt of the Founder Transfer Notice (the “Investor’s First Refusal Period”) to elect to purchase all or any portion of its pro rata share at the same per share purchase price and subject to the same terms and conditions as described in the Founder Transfer Notice, directly or indirectly, without the prior written consent by delivering before expiration of the Investor’s First Refusal Period a written notice to the Founder Selling Shareholder, offer, sell, grant any option the Company and each of the other Investors setting out the number of Founder Offered Shares that it wishes to purchase. For the purpose of this Section 4.2, or otherwise dispose of (or announce any offer, sale, grant or any option an Investor’s pro rata share shall be equal to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting total number of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted Founder Offered Shares multiplied by the Company, (ii) shares issued upon exercise a fraction, the numerator of any currently outstanding warrants which is the number of Ordinary Shares (calculated on an as-converted and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iiifully-diluted basis and excluding the Excluded Ordinary Shares) Put Shares, (iv) shares issued in connection with held by such Investor as at the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all date of the purchase price for Founder Transfer Notice and the acquisition denominator of which is the total number of Ordinary Shares (calculated on an as-converted and fully-diluted basis and excluding the Excluded Ordinary Shares) owned by all Investors as at the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt date of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Founder Transfer Notice. If To the extent that any Investor shall fail to notify the Company of does not exercise its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice full extent of its pro rata share resulting in a remaining balance of un-acquired Founder Offered Shares, the Investors that have exercised in full their rights of first refusal (the “Exercising Investors”) shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice option to elect, within sixty five (605) Trading Business Days after the date end of the initial Subsequent Financing Notice with the Person (Investor’s First Refusal Period, to purchase all or an Affiliate any portion of such Person) identified remaining balance of un-acquired Founder Offered Shares, which will be allocated to the extent necessary among the Exercising Investors in the Subsequent Financing Noticeaccordance with their relative pro rata share.
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Pinduoduo Inc.), Shareholder Agreement (Walnut Street Group Holding LTD)
Right of First Refusal. The During the Open Period, the Company shall not enter into any subsequent funding transactions of the type similar to this transaction and if the total amount of funding is provided prior to the end of the Open Period the Company shall give Investor a ten (10) business day written right of first refusal to enter into a subsequent funding transaction. During the Open Period and for a period of twelve months thereafter, the Company shall not, directly or indirectly, without the prior written consent of the Investor, Investor offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent Financing") for a period of 180 days after the Effective Date), except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.34(c), (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (viv) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (whichanother entity, for purposes of this clause and (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.
Appears in 4 contracts
Sources: Subscription Agreement (Upholstery International, Inc.), Subscription Agreement (Pharmamed, Inc.), Subscription Agreement (Upholstery International, Inc.)
Right of First Refusal. The Subject to the Placement Agent’s consummation of this Placement, beginning on the Closing Date of such Placement until the eighteen (18)-month anniversary following the Closing Date (the “ROFR Period”), whether or not this Agreement is terminated pursuant to Section 5, other than termination for Cause (as defined below), the Company grants the Placement Agent the right to provide investment banking services to the Company on an exclusive basis in all matters for which the following investment banking services are sought by the Company (such right, the “ROFR”), which right is exercisable in the Placement Agent’s sole discretion and which right shall notnot have a duration of more than three (3) years from the commencement of the sales of the Securities in the Placement or the termination of the Placement Agent’s engagement hereby in accordance with FINRA Rule 5110(g)(6)(A). For these purposes, investment banking services shall mean (a) acting as lead manager for any underwritten public offering; (b) acting as exclusive placement agent, initial purchaser or financial advisor in connection with any private offering of securities of the Company; and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, without the prior written consent of the Investora majority or controlling portion of its capital stock or assets to another entity, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any transfer by another entity, directly or indirectly, of its equity a majority or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements controlling portion of the Securities Act capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. Within five (a "Subsequent Financing"5) for a period of 180 days after the Effective DateCompany’s decision to enter into any such transaction, except (i) the granting of options or warrants Company shall provide written notice to employees, officers and directorsthe Placement Agent, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities Placement Agent shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into exercise the ROFR within fifteen (15) business days following receipt of such negotiations within written notice from the Company. Any decision by the Placement Agent to act in any such time periodcapacity shall be contained in separate agreements, which agreements would contain, among other matters, provisions for customary fees for transactions of similar size and nature, as may be mutually agreed upon by the parties thereto, and indemnification of the Placement Agent which are appropriate to such transaction and shall be subject to general market conditions. If the Placement Agent declines to exercise the ROFR or in the event the terms proposed by the Placement Agent are unsatisfactory to the Company, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall retain any other person or persons to provide such services on terms and conditions which are not have been consummated for any reason on more favorable to such other person or persons than the terms set forth declined by the Placement Agent in such Subsequent Financing Notice within sixty (60) Trading Days after the date first instance, or than the terms proposed by the Placement Agent in the second instance. The ROFR granted hereunder may be terminated by the Company for “Cause”, which shall mean a material breach by the Placement Agent of this Agreement or a material failure by the Placement Agent to provide the services as contemplated by this Agreement. The services provided by the Placement Agent hereunder are solely for the benefit of the initial Subsequent Financing Notice with Company and are not intended to confer any rights upon any persons or entities not a party hereto (including, without limitation, securityholders, employees or creditors of the Person (Company) as against the Placement Agent or an Affiliate of such Person) identified in the Subsequent Financing Noticeits directors, officers, agents and employees.
Appears in 4 contracts
Sources: Placement Agency Agreement (GD Culture Group LTD), Placement Agency Agreement (GD Culture Group LTD), Placement Agency Agreement (GD Culture Group LTD)
Right of First Refusal. The Company grants the Underwriter the right to provide investment banking services to the Company on an exclusive basis in all matters for which investment banking services are sought by the Company until the one year anniversary of the termination of this Agreement (such right, the “Right of First Refusal”). For these purposes, investment banking services shall notinclude, without limitation, (i) acting as sole bookrunner and lead manager for any underwritten public offering of securities, including equity, equity–linked or senior, senior subordinated or junior debt securities with a minimum of 60% economics; (ii) acting as exclusive placement agent and/or financial advisor in connection with any private offering of securities, including equity, equity- linked or debt securities of the Company; (iii) acting as exclusive financial advisor in connection with any acquisition, merger, consolidation and other business combination involving all or substantial amount of the business, securities, assets of another entity and (iv) acting as exclusive financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, without the prior written consent of the Investora majority or controlling portion of its capital stock or assets to another entity, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any transfer by another entity directly or indirectly, of its equity a majority or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements controlling portion of the Securities Act (a "Subsequent Financing") for a period capital stock or assets of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of and any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization merger or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all consolidation of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), with another entity. The Underwriter shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into exercise the Right of First Refusal within 15 business days following notice in writing by the Company. Any decision by the Underwriter to act in any such negotiations within such time periodcapacity shall be contained in separate agreement, which agreements would contain, among other matters, provisions for customary fees for transactions of similar size and nature, as may be mutually agreed upon, and indemnification of the Underwriter and its affiliates and shall be subject to general market conditions. If the Underwriter declines to exercise the Right of First Refusal, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right to retain any other person or persons to provide such services on terms an conditions which are not materially more favorable to such other person or persons than the terms declined by the Underwriter. As compensation for any of first refusal set forth above in this Section 6.13 (a)the foregoing services, the Underwriter will be paid customary fees to be mutually agreed upon at the appropriate time. Notwithstanding the foregoing, the Underwriter shall lose the Right of First Refusal if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticesales transaction under this Agreement is terminated.
Appears in 4 contracts
Sources: Underwriting Agreement (CUI Global, Inc.), Underwriting and Advisory Agreement (CUI Global, Inc.), Underwriting and Advisory Agreement (CUI Global, Inc.)
Right of First Refusal. (i) If at any time any Stockholder intends to Transfer any or all of the Preferred Stock or Common Stock owned by him (any such Stockholder is hereinafter referred to as a “Selling Stockholder”), excluding any Transfer in connection with a bona fide offer from a Proposed Transferee to purchase all of the stock or all or substantially all of the assets of the Company which shall be governed solely by Section 3(d)(ii), the Selling Stockholder shall give written notice (the “Stockholder’s Notice”) to the Company and the Preferred Stockholders stating that the Selling Stockholder intends to make such Transfer, identifying the proposed purchaser (the “Proposed Transferee”), specifying the number of shares of Preferred Stock or Common Stock proposed to be transferred (the “First Refusal Shares”), and specifying the per share purchase price which the Proposed Transferee has offered to pay for the First Refusal Shares (the “Sale Price”). The Stockholder’s Notice shall certify that the Selling Stockholder has received a firm offer from the Proposed Transferee and in good faith believes a binding agreement for the transfer of the First Refusal Shares is obtainable on the terms set forth therein. A copy of the offer (or a summary of the terms thereof) shall be attached to the Stockholder’s Notice.
(ii) If, at the time of receipt of the Stockholder Notice, the Company is contractually restricted from fully exercising its rights to purchase pursuant to this Section 3(c) (and the Company does not reasonably believe it can obtain a waiver or the Company does not intend to seek a waiver of such restrictions) or the Company is legally restricted under the Delaware General Corporation Law from fully exercising its rights under this Section 3(c), the Company shall notpromptly so notify the Selling Stockholder in writing. Otherwise, directly or indirectly, without the prior written consent upon receipt of the InvestorStockholder’s Notice, offerthe Company shall, sellsubject to Section 3(c)(iii) below, grant have the irrevocable and exclusive option to purchase all or any portion of the First Refusal Shares by delivery of a written notice to the Selling Stockholder, within ten (10) business days of its receipt of the Stockholder’s Notice, of its election to exercise its option under this Section 3(c)(ii) and the number of shares it is willing to purchase. To the extent the Company does not elect to purchase all of the First Refusal Shares or the Company does not respond to the Stockholder’s Notice within such ten (10) business day period or the Selling Stockholder receives the notice from the Company referred to in the first sentence of this Section 3(c)(ii), the Selling Stockholder shall notify the Preferred Stockholders of the number of First Refusal Shares that remain eligible for purchase, and the Preferred Stockholders shall, subject to Section 3(c)(iii) below, have the irrevocable and exclusive option to purchase all or any portion of the remaining First Refusal Shares at the Sale Price by delivery of written notice to the Selling Stockholder and the Company of their election to exercise their option under this Section 3(c)(ii) (any such holder exercising this election, a “First Refusal Participant”) and the maximum number of shares (up to that portion of such First Refusal Shares that equals the proportion that the aggregate number of shares of Common Stock that were issued and/or are issuable upon conversion of the Preferred Stock held by a First Refusal Participant (plus the aggregate number of other shares of Common Stock held by such holder if the First Refusal Participant is West Central or a member of the USBG Group) bears to the sum of the total number of shares of Common Stock that were issued or are issuable upon conversion of all of the issued and outstanding shares of Preferred Stock and the number of other shares of Common Stock held by West Central and the members of the USBG Group, in each case excluding any such shares held by the Selling Stockholder) that they are willing to purchase, or otherwise dispose as well as the number of (or announce any offer, sale, grant or any option additional shares that such holder desires to purchase or other disposition) any in the event all of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended remaining First Refusal Shares not elected to be exempt from purchased by the registration requirements other Preferred Stockholders which shall be allocated on a pro rata basis (calculated in a similar manner as described in the preceding sentence, and continuing in a like manner until the First Refusal Participants have purchased all of the Securities Act First Refusal Shares as they may elect). Within thirty (30) days of receipt of the Stockholder’s Notice, the First Refusal Participants shall deliver to the Selling Stockholder a "Subsequent Financing"written notice of their election to purchase any remaining First Refusal Shares.
(iii) The Company and the First Refusal Participants shall deliver the Sale Price for any First Refusal Shares that any such party elects to purchase to the Selling Stockholder no later than sixty (60) days after receipt of the Stockholder’s Notice, unless the Stockholder’s Notice contemplated a later closing with the Proposed Transferee. In the event the Company and the First Refusal Participants, taken together, do not elect to purchase all of the First Refusal Shares pursuant to Section 3(c)(ii), then the Selling Stockholder shall be free for a period of 180 one hundred and twenty (120) days from the date of the Stockholder’s Notice, to sell the remaining First Refusal Shares to the Proposed Transferee, at a price equal to or greater than the Sale Price and upon other terms no more favorable to the Proposed Transferee than those specified in the Stockholder’s Notice. Any transfer of the First Refusal Shares by the Selling Stockholder after the Effective Date, except (i) end of such 120-day period or at a price lower than the granting Sale Price or on more favorable terms of options or warrants the sale than set forth in the Stockholder’s Notice shall require a new notice of intent to employees, officers and directors, transfer to be delivered to the Company and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by Preferred Stockholders and shall give rise anew to the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock rights provided in each case disclosed in Section 4.3, (iii) Put Shares, the preceding paragraphs.
(iv) shares issued If the Company and/or the First Refusal Participants elect to purchase First Refusal Shares mentioned in connection with the capitalization Stockholder’s Notice, the Company and/or the First Refusal Participants, as applicable, shall have the right to purchase the First Refusal Shares for cash consideration whether or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price consideration specified in the Stockholder’s Notice is other than cash. If part or all of the consideration to be paid for the acquisition First Refusal Shares as stated in the Stockholder’s Notice is other than cash, the price stated in such Stockholder’s Notice shall be deemed to be the sum of the cash consideration, if any, specified in such Stockholder’s Notice, plus the fair market value of the non-cash consideration. The fair market value of the non-cash consideration shall be determined by an independent appraiser agreed upon by the Company and the Selling Stockholder if the Company exercised and if the Company did not exercise by the Board of a Person the Company (which, for purposes excluding those members of this clause (vthe Board designated by or affiliated with any First Refusal Participant), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers judgment as to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms fair market value of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing non-cash consideration shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) binding on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, Selling Stockholder and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeFirst Refusal Participants.
Appears in 4 contracts
Sources: Stockholder Agreement, Stockholder Agreement (Renewable Energy Group, Inc.), Stockholder Agreement (REG Newco, Inc.)
Right of First Refusal. (i) The Company Optionee shall not, directly or indirectly, without the prior written consent of the Investor, offer, not sell, grant any option to purchasepledge, assign, gift, transfer or otherwise dispose of any shares of Stock acquired pursuant to the Option Agreement to anyone without first offering them to the Company for purchase on the same terms and conditions as those offered the proposed transferee. Any individual who proposes such a transfer (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent FinancingTransferor") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by shall notify the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3writing, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt identity of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon transferee and the terms and to the Persons (or Affiliates conditions of such Persons) set forth in the Subsequent Financing Notice; provided, that the transfer. The Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the may exercise its right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days days after the date receiving such notice of the initial Subsequent Financing Notice proposed transfer. If the Company (or its permitted assignee) fails to exercise such right of first refusal during this sixty (60) day period, the Transferor may proceed with the Person proposed transfer at any time within the next sixty (60) days, and if he does not do so, the restrictions of this Subsection shall re-apply. The restrictions of this Subsection shall re-apply to any person to whom Stock that was originally acquired pursuant to the Option Agreement is sold, pledged, assigned, bequeathed, gifted, or otherwise transferred, without regard to the number of such subsequent transferees or the manner in which they acquire the Stock. Notwithstanding the foregoing, the restrictions of this Subsection shall not apply to a transfer of Stock that occurs as a result of the death of the Transferor or of any subsequent transferee (but shall apply to the executor, administrator or personal representative, the estate and the legatees, beneficiaries and assigns thereof). The right of first refusal granted in this Section shall terminate on the closing of an initial public offering of the Company's Stock under the Securities Act.
(ii) The Company may assign its right of first refusal under this Section 5, in whole or in part, to a Shareholder, a Plan or an Affiliate Affiliate. The Company shall give reasonable written notice to the Transferor of such Person) identified in the Subsequent Financing Noticeany assignment of its rights.
Appears in 4 contracts
Sources: Stock Option Agreement (Informax Inc), Stock Option Agreement (Informax Inc), Stock Option Agreement (Informax Inc)
Right of First Refusal. The Company covenants that in the event that, between the execution of this Agreement and the Closing Date, the Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates issue Equity Securities (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements Section 4.1 of the Investor Rights Agreement) and such Equity Securities Act are not excluded pursuant to Section 4.7 of the Investor Rights Agreement, then the Purchaser shall have the rights of a Right of First Refusal Investor (as defined in the Investor Rights Agreement) as described in Section 4 of the Investor Rights Agreement, subject to the following limitations:
(a) The Purchaser shall have the right to purchase only that number of Equity Securities which are necessary for Purchaser to own 10% of the outstanding capital stock of the Company (calculated on a "Subsequent Financing") fully diluted basis including all options, warrants and convertible securities outstanding or reserved for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (iistock purchase plan) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all as of the purchase price Closing Date;
(b) The Equity Securities purchased by Purchaser pursuant to this Section 3.26 shall be for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) price and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and conditions as specified in the notice provided to Purchaser in the Persons manner contemplated by Section 4.2 or 4.4 of the Investor Rights Agreement;
(or Affiliates of such Personsc) The Purchaser must comply with the response to notice provisions set forth in the Subsequent Financing Notice; providedSections 4.2, that the Company shall provide 4.3 and 4.4 of the Investor with a second Subsequent Financing NoticeRights Agreement; however, and the closing of any sale of Equity Securities to the Purchaser pursuant to Section 4 of the Investor Rights Agreement will occur on the Closing Date;
(d) Solely for the purpose of Section 4.5 of the Investor Rights Agreement, the Shares shall again have be included in the right definition of first refusal set forth above Registrable Securities;
(e) Solely for the purpose of calculating the number of shares the Purchaser may purchase under Section 4.1 of the Investor Rights Agreement, Purchaser shall be deemed to hold 4,182,578 shares of the Company's Common Stock (as such number may be adjusted as a result of Purchaser's exercise of its rights under this Section 3.26 to purchase additional shares); and
(f) Solely for the purpose of calculating the number of shares each Right of First Refusal Investor may purchase under Section 4.1, the Shares shall be deemed outstanding shares immediately prior to the issuance of the Equity Securities. Except as stated in this Section 6.13 (a)3.26, if all of the Subsequent Financing subject provisions of Section 4 of the Investor Rights Agreement shall apply to the initial Subsequent Financing Notice shall not have been consummated for any reason on Purchaser, including the terms early termination provisions set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date Section 4.5 of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeInvestor Rights Agreement.
Appears in 4 contracts
Sources: Series C Preferred Stock Purchase Agreement (Mp3 Com Inc), Series C Preferred Stock Purchase Agreement (Mp3 Com Inc), Series C Preferred Stock Purchase Agreement (Mp3 Com Inc)
Right of First Refusal. The Company shall notparties agree that before there can be a valid sale, directly assignment or indirectly, without the prior written consent transfer by any Investor of shares of the Company’s Series G Preferred Stock or Series H Preferred Stock (other than (i) a transfer not involving a change in beneficial ownership, (ii) transactions involving the distribution of such shares by any of the Investors to any of their partners or stockholders, (iii) pursuant to a transfer without consideration to the spouse or lineal descendants of the transferring Investor, offeror a trust for the benefit of the transferring Investor, sellhis spouse and/or lineal descendants, grant (iv) a transfer to any option to purchaseother individual, corporation, trust, partnership, joint venture, unincorporated organization, limited liability company, government agency or any agency or political subdivision thereof, or otherwise dispose of other entity (each, a “Person”) that directly, or announce indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Investor (including without limitation any offer, sale, grant other Person over which such Investor has management rights) or (v) in connection with any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates Acquisition (as defined in Rule 405 under the Securities ActVoting Agreement of even date herewith made between the Company and the Stockholders and Investors named therein) which shall have been approved by at least half in any transaction that is intended number of the Major Investors (as defined in the Purchase Agreement)), the Investor intending to transfer (the “Selling Investor”) shall first give notice in writing (the “Notice of Sale”) to the Company of his, her or its intention to sell such shares (the “Noticed Shares”). Such Notice of Sale shall specify the number of Noticed Shares to be exempt from sold, the registration requirements name of the Securities Act proposed purchaser (a "Subsequent Financing") for a period of 180 days after the Effective Date“Proposed Purchaser”), except (i) the granting of options or warrants to employees, officers and directors, price per Noticed Share and the issuance of shares terms and conditions upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by which the Selling Investor intends to make such sale. Promptly upon the Company’s receipt of such Notice of Sale, the Secretary of the Company shall mail or deliver a copy of such Notice of Sale to all Investors owning Common Stock Equivalents (iias hereafter defined) shares issued upon exercise of (such stockholders being hereinafter referred to as the “Optionee Investors”). Within thirty (30) days thereafter, any currently outstanding warrants and upon conversion of such Optionee Investor desiring to acquire any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for Noticed Shares (the acquisition “Offering Investor”) shall deliver by mail or otherwise to the Secretary of the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention offer or offers, to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms purchase a specified number of such Subsequent Financing, Noticed Shares at the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, price and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and conditions stated in such Notice of Sale, accompanied by the stated consideration therefor with authorization to transfer such consideration against delivery of such shares, which offers, subject to Section 4.2, shall be accepted by the Selling Investor. As used herein, “Common Stock Equivalents” shall mean outstanding shares of Common Stock and shares of Common Stock issuable upon conversion of outstanding Series G Preferred Stock or Series H Preferred Stock. If the total number of shares specified in said offers to the Persons Secretary exceeds the number of the Noticed Shares, each Offering Investor shall be entitled to purchase that number of shares which is equal to the lesser of:
(or Affiliates i) the number of shares specified in said offer, or
(ii) such Persons) proportion of the Noticed Shares as the number of shares of Common Stock issued and issuable upon conversion of Series G Preferred Stock and Series H Preferred Stock held by such Offering Investor bears to the total number of shares of Common Stock issued and issuable upon conversion of shares of Series G Preferred Stock and Series H Preferred Stock held by all the Offering Investors. If all of the Noticed Shares are not disposed of under the apportionment pursuant to this Section 4.1, those shares remaining undisposed of shall be apportioned among those Offering Investors whose number of Shares specified in their respective offers under Section 4.1 exceed the number of shares allocated to them, which excess shares shall be apportioned on the basis of the apportionment formula set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Noticethis Section, and the Investor said apportionment process shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject be repeated with respect to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days excess shares after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeeach apportionment until all Noticed Shares are allocated.
Appears in 4 contracts
Sources: Investors’ Rights Agreement (Digirad Corp), Investors’ Rights Agreement (Digirad Corp), Investors’ Rights Agreement (Digirad Corp)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, which will not be unreasonably withheld, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent FinancingSUBSEQUENT FINANCING") for a period of 180 days one year after the Effective Date, except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter hereafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.34(c), (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (viv) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ), and (viv) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing NoticeSUBSEQUENT FINANCING NOTICE") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice, (vi) to enter into a loan, credit or leas facility with a bank or other financing institution. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that PROVIDED THAT the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty thirty (6030) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person except as disclosed on Schedule 4(c).
Appears in 4 contracts
Sources: Investment Agreement (On the Go Healthcare Inc), Investment Agreement (Vital Products, Inc.), Investment Agreement (On the Go Healthcare Inc)
Right of First Refusal. The Each holder of the Debentures, holder of Shares (provided any Debentures remain outstanding and the Shares received upon conversion have not been sold, transferred or otherwise disposed of) (the "Common Holder"), holders of the March 1998 Debentures (the "Existing 1998 Debentureholders") and holders of shares of Common Stock issued upon the conversion of the March 1998 Debentures (provided any March 1998 Debentures remain outstanding and the shares of Common Stock received upon conversion have not been sold, transferred or otherwise disposed of) (the "Old Common Holders") shall be entitled to the following right of first refusal:
(a) Except in the case of Excluded Securities, the Company shall notnot issue, directly sell or indirectlyexchange, without the prior written consent agree to issue, sell or exchange, or reserve or set aside for issuance (except as provided in Section 6.16), sale or exchange (i) any shares of Common Stock, (ii) any other equity security of the InvestorCompany, offer(iii) any debt security of the Company which by its terms is convertible into or exchangeable for, sellwith or without consideration, grant any option equity security of the Company, (iv) any security of the Company that is a combination of debt and equity or (v) any option, warrant or other right to purchasesubscribe for, purchase or otherwise dispose of (or announce acquire any offer, sale, grant equity security or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements such debt security of the Securities Act Company (a collectively, the "Subsequent FinancingEquity Securities") unless in each case, the Company shall have first offered to sell to the holders of Debentures, the Common Holders, the Existing 1998 Debentureholders and the Old Common Holders, the Equity Securities, at a price and on such other terms as shall have been specified by the Company in writing delivered to each of the holders of Debentures, the Common Holders, the Existing 1998 Debentureholders and the Old Common Holders (the "Offer"), which Offer by its terms shall remain open and irrevocable for a period of 180 30 days after from the Effective Datedate it is delivered by the Company to the holders of Debentures, except the Common Holders, the Existing 1998 Debentureholders and the Old Common Holders; provided, however, that such issuance, sale or exchange of equity securities shall result in gross proceeds to the Company (whether at the time of issuance or upon conversion, exercise, or exchange thereof) of an amount in excess of $200,000 (the "Minimum Offering Threshold"). For purposes of computing the Minimum Offering Threshold, all offerings, issuances, sales and exchanges of Equity Securities during any rolling 12-month period shall be aggregated.
(b) Each of the holders of Debentures, the Common Holders, the Existing 1998 Debentureholders and the Old Common Holders shall have the right to purchase up to its pro rata share of the Equity Securities determined at the time of the consummation of the Company's issuance of Equity Securities. The "pro rata share" of each holder of Debentures, Common Holder, Existing 1998 Debentureholders and the Old Common Holders shall be that amount of the Equity Securities multiplied by a fraction, the numerator of which is the sum of (i) Shares underlying the granting Debenture held by such Person if such Person is the holder of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Companya Debenture, (ii) shares the number of Shares of Common Stock issued upon exercise of any currently outstanding warrants and to such Common Holder upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3a Debenture if such Person is a Common Holder, (iii) Put Shares, the number of shares of Common Stock underlying the March 1998 Debentures held by such Person if such Person is an Existing 1998 Debentureholder and (iv) the number of shares of Common Stock issued to an Existing 1998 Debentureholder upon conversion of a March 1998 Debenture if such Person is an Old Common Holder, and the denominator of which is the sum of (x) the total number of shares of Common Stock underlying the Debentures issued pursuant to this Agreement and (y) the total number of shares of Common Stock underlying the March 1998 Debentures.
(c) Notice of the intention of each holder of a Debenture, Common Holder, Existing 1998 Debentureholder or Old Common Holder to accept, in whole or in part, an Offer shall be evidenced by a writing signed by such person, as the case may be and delivered to the Company prior to the end of the 30-day period commencing with the date of such Offer (or, if later within ten days after the delivery or giving of any written notice of a material change in such Offer), setting forth such portion (specifying number of shares, principal amount or the like) of the Equity Securities such Person elects to purchase (the "Notice of Acceptance").
(d) In the event that all holders of Debentures, Common Holders, Existing 1998 Debentureholders and Old Common Holders do not elect to purchase all of the Equity Securities, the persons which have provided notice of their intention to exercise the refusal rights as provided in subparagraph (c) above shall have the right to purchase, on a pro rata basis, any unsubscribed portion of the Equity Securities during a period of ten days following the 30-day period provided in subparagraph (c) above. Following such additional ten-day period, in the event the holders of the Debentures, the Common Holders, Existing 1998 Debentureholders and the Old Common Holders have not elected to purchase all of the Equity Securities, the Company shall have 90 days from the expiration of the foregoing 40-day period to sell all or any part of such Equity Securities as to which a Notice of Acceptance has not been given by any of such persons (the "Refused Securities") to any other Person or Persons on the terms provided in the Offer. Upon the closing of the sale to such other Person or Persons of all the Refused Securities, which shall include payment of the purchase price to the Company in accordance with the terms of the Offer, if the holders of Debentures, the Common Holders, Existing 1998 Debentureholders and Old Common Holders have timely submitted a Notice of Acceptance, it and they shall purchase from the Company, and the Company shall sell to such persons, as the case may be, the Equity Securities in respect of which a Notice of Acceptance was delivered to the Company, at the terms specified it the Offer. The purchase by the holders of Debentures, Common Holders, Existing 1998 Debentureholders and the Old Common Holders of any Equity Securities is subject in all cases to the preparation, execution and delivery by the Company to such persons of a purchase agreement and other customary documentation relating to such Equity Securities as is satisfactory in form and substance to such persons and each of their respective counsel.
(e) In each case, any Equity Securities not purchased by the holders of Debentures, the Common Holders, Existing 1998 Debentureholders and the Old Common Holders or by a Person or Persons in accordance with Section 17.1(d) hereof may not be sold or otherwise disposed of until they are again offered to such persons under the procedures specified in Sections 17.1(a), (c) and (d) hereof.
(f) The rights of the holders of Debentures, the Common Holders, Existing 1998 Debentureholders and the Old Common Holders under this Section 17.1 shall not apply to the following securities (the "Excluded Securities"):
(i) Common Stock or options to purchase such Common Stock, issued to officers, employees or directors of, or consultants to, the Company, pursuant to any agreement, plan or arrangement approved by the Board of Directors of the Company;
(ii) Common Stock issued as a stock dividend or upon any stock split or other subdivision or combination of shares of Common Stock;
(iii) shares issued upon conversion of the Debentures or the Existing Debentures or exercise of the warrants issued in connection with the capitalization issuance of the Existing Debentures;
(iv) any securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or creation similar business combination approved by the Board of Directors and at the Company's Annual Meeting of Shareholders; or
(v) any debentures issued in satisfaction of interest payments under the Existing Debentures, including debentures instruments issued in satisfaction of interest payments on those debenture instruments.
(g) Notwithstanding anything to the contrary contained herein, a holder of a joint venture with Debenture or a strategic partner Common Holder (a Person whose business is primarily that of investing and selling of securities other than an initial Purchaser) shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, considered as such for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securitiesSection 17.1 only, unless (A) such Person then holds Debentures with an outstanding principal amount of at least $200,000 or Shares issued upon conversion of at least $200,000 in principal of Debentures or a combination of Debentures and Shares such that the Company delivers to outstanding principal of the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect Debentures held by such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, Person plus the amount of proceeds intended to be raised thereunder, the principal of Debentures converted into Shares held by such Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet equals or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeexceeds $200,000.
Appears in 3 contracts
Sources: Convertible Debenture Agreement (Halsey Drug Co Inc/New), Debenture Purchase Agreement (Halsey Drug Co Inc/New), Debenture Purchase Agreement (Halsey Drug Co Inc/New)
Right of First Refusal. The Company shall not, directly or indirectly, ---------------------- without the prior written consent of the Investor, Investor offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent FinancingSUBSEQUENT FINANCING") for a period of 180 days one year after the Effective Date, except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.34(c), (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (viv) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ), and (viv) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a ------ written notice (the "Subsequent Financing NoticeSUBSEQUENT FINANCING NOTICE") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that PROVIDED THAT the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty thirty (6030) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person except as disclosed on Schedule 4(c).
Appears in 3 contracts
Sources: Investment Agreement (Diversified Product Inspections Inc), Investment Agreement (Diversified Product Inspections Inc), Investment Agreement (Marketcentral Net Corp)
Right of First Refusal. The Company Each Major Investor shall not, directly or indirectly, without the prior written consent have a right of first refusal to purchase an amount of securities of the Company of any class or kind which the Company proposes to sell (other than the issuance of shares contemplated by Section 3.1 above) (“Preemptive Securities”) sufficient to maintain such Major Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates ’s proportionate beneficial ownership interest in the Company (as defined in Rule 405 under below). If the Securities Act) in Company wishes to make any transaction that is intended to be exempt from such sale of Preemptive Securities, it shall give the registration requirements Major Investors written notice of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except proposed sale. The notice shall set forth (i) the granting of options or warrants Company’s bona fide intention to employees, officers offer Preemptive Securities and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) the material terms and conditions of the proposed sale (including the number of shares to be offered and the price, if any, for which the Company proposes to offer such shares), and shall constitute an offer to sell Preemptive Securities to the Investors on such terms and conditions. Any Major Investor may accept such offer by delivering a written notice of acceptance (an “Acceptance Notice”) to the Company within fifteen (15) days after receipt of the Company’s notice of the proposed sale. Any Major Investor exercising its right of first refusal shall be entitled to participate in the purchase of Preemptive Securities on a pro rata basis to the extent necessary to maintain such Major Investor’s proportionate beneficial ownership interest in the Company (such Major Investor’s “Pro Rata Portion”). For purposes hereof, a Major Investor’s Pro Rata Portion shall be determined by multiplying the number of Preemptive Securities by a fraction, (X) the numerator of which shall be the number of shares of Common Stock issued or issuable upon conversion or exercise of any currently all of the convertible or exercisable securities of the Company held by such Major Investor (the “FD-MI Shares”) and (Y) the denominator of which shall be the number of shares of Common Stock outstanding warrants and (including all shares of Common Stock issued or issuable upon conversion or exercise of all of the convertible or exercisable securities of the Company outstanding). The Company shall, in writing, inform each Investor which elects to purchase its Pro Rata Portion of Preemptive Securities of any currently outstanding convertible preferred stock other Major Investor’s failure to do so (the “Unclaimed Shares”), in each which case disclosed in Section 4.3the Investors previously electing to purchase shares of Preemptive Securities (“PS Investors”) shall have the right to purchase a portion of such Unclaimed Shares on a pro rata basis based on the ratio of the number of FD-MI Shares that a PS Investor holds to the aggregate number of FD-MI Shares held by all PS Investors. If the Company does not enter into an agreement for the sale of such shares within the 60-day period following the deadline for delivery of the Acceptance Notice, (iii) Put Shares, (iv) the right provided hereunder shall be deemed to be revived and all future shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities Preemptive Securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, offered unless (A) the Company delivers first reoffered to the Major Investors in accordance with this Section 3. A Major Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide)shall, subject to completion of mutually acceptable documentationsecurities laws, financing be entitled to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have apportion the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth hereby granted among itself and its partners and affiliates in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeproportions it deems appropriate.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (YuMe Inc), Investors’ Rights Agreement (YuMe Inc), Investors’ Rights Agreement (YuMe Inc)
Right of First Refusal. The (a) Before any Shares registered in the name of Purchaser may be sold or transferred (including transfer by operation of law), such Shares shall first be offered to the Company shall notat the same price, directly or indirectly, without and upon the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of same terms (or announce any offerterms as similar as reasonably possible), sale, grant or any option to purchase or other dispositionin the following manner:
(i) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act Purchaser shall deliver a notice (a "Subsequent FinancingNotice") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless stating (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its Purchaser's bona fide intention to effect sell or transfer such Subsequent FinancingShares, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified number of such Shares to be sold or transferred, (C) the Company by 5:00 p.m. price for which Purchaser proposes to sell or transfer such Shares, and (Salt Lake City timeD) on the fifth name of the proposed purchaser or transferee.
(5thii) Trading Day Within 30 days after its receipt of the Subsequent Financing Notice, the Company or its assignee may elect to purchase any or all Shares to which the Notice of its willingness to enter into or otherwise provide refers, at the price per share and on the same terms (or terms as similar as reasonably possible) specified in the Notice.
(iii) If all or a portion of the Shares to cause which the Notice refers are not elected to be purchased pursuant to Section 6.2(a)(ii) hereof, Purchaser may sell the Shares not purchased by the Company to any person named in the Notice at the price and terms specified in the Notice or at a higher price, provided that such sale or transfer is consummated within 60 days of the date of said Notice to the Company and, provided further, that any such sale is in accordance with all the terms and conditions hereof. In the event of any transfer by operation of law or other involuntary transfer (including, but not limited to, by will or by the laws of descent or distribution) where there is no price established as a matter of law, the Company shall have the right to repurchase all of the Shares purchased by Purchaser hereunder, at a per Share price equal to the greater of (i) $0.85 or (ii) the fair market value per share ("FMV per Share") as determined in good faith by the Board of Directors of the Company (the "Board") after taking into consideration all relevant factors. In such event, Purchaser (or Purchaser's estate) shall notify the Company promptly after the happening of the event giving rise to the involuntary transfer. Within 30 days after receipt of such notice, the Company or its designee to provide)assignee, subject to completion Section 6.2(b) below, may elect to purchase any or all Shares to which the notice refers.
(b) In the event that Purchaser (or Purchaser's estate) does not agree with the Board's determination of the FMV per Share and Purchaser (or Purchaser's estate) and the Board are unable to agree mutually acceptable documentationon the FMV per Share within ten days from the date on which notice of the Board's determination under the last paragraph of Section 6.2(a) is delivered to Purchaser (or Purchaser's estate), financing to then the Company on substantially FMV per Share will be determined by one or more Qualified Appraisers (as defined below) selected in accordance with the terms set forth procedures in the Subsequent Financing Noticethis Section. If the Investor FMV per Share is to be determined by Qualified Appraisers, then Purchaser (or Purchaser's estate) and the Company will each have the opportunity to appoint, at his or its own expense, a Qualified Appraiser, within five days following the expiration of the ten-day period within which the Purchaser (or Purchaser's estate) and the Company could not mutually agree on the FMV per Share. If either party shall fail to notify appoint a Qualified Appraiser within this five-day period, then the other Qualified Appraiser shall unilaterally establish the FMV per Share by a written opinion. If both parties appoint Qualified Appraisers within this five-day period, these two Qualified Appraisers shall establish the FMV per Share in a single written opinion agreed to by both of them. If these two Qualified Appraisers cannot agree on the FMV per Share within 30 days of the appointment of the latter of them, these two Qualified Appraisers shall together appoint a third Qualified Appraiser whose sole written opinion shall establish the FMV per Share. Any action to be taken by the Company under this Section 6.2 shall be taken by the Board, except that Purchaser (or Purchaser's estate) shall not vote, as a director or shareholder of its intention the Company, and either directly or through an agent or subordinate, with respect to enter into such negotiations within actions. If a third Qualified Appraiser is appointed, the fees and expenses charged by such time periodQualified Appraiser shall be borne equally by Purchaser (or Purchaser's estate) and the Company. The Company will provide such data as any Qualified Appraiser deems necessary or useful in connection with such Appraiser's determination of the FMV per Share. A "Qualified Appraiser" is a professional appraiser or independent certified public accountant who is qualified by experience and ability to appraise the Shares. Within 30 days after the determination of the FMV per Share in accordance with this Section 6.2(b), the Company or its assignee may effect the Subsequent Financing substantially upon the terms and elect to purchase any or all Shares subject to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the Company's right of first refusal set forth above in pursuant to this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice6.2.
Appears in 3 contracts
Sources: Subscription Agreement (Ixia), Subscription Agreement (Ixia), Subscription Agreement (Ixia)
Right of First Refusal. The (a) If the Company, at any time or from time to time following the Closing and prior to the Sunset Date, proposes to issue (a “New Issuance”) any New Securities, the Company shall not, directly or indirectly, without provide Investor with written notice (an “Issuance Notice”) of such New Issuance at least fifteen (15) Business Days prior to the prior written consent proposed issuance of such New Securities. The Issuance Notice shall set forth the material terms and conditions of the InvestorNew Issuance, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except including (i) the granting proposed number of options or warrants to employeesNew Securities if known or, officers and directorsif not known, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Companyan estimate thereof, (ii) shares issued upon exercise a description of any currently outstanding warrants the New Securities and upon conversion proposed manner of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3sale, (iii) Put Sharesthe purchase price per New Security (or conversion price or premium in the event of an offering of convertible debt) (the “Per Security Offering Price”) if known or, if not known, an estimate thereof, and (iv) shares issued the proposed issuance date if known or, if not known, an estimate thereof. Investor shall be entitled to purchase (either directly or through any other Investor Parties or Investor Permitted Transferees), at the Per Security Offering Price and on the other terms and conditions specified in connection the Issuance Notice, any portion of such New Securities that does not exceed the Percentage Interest of the Investor Entities immediately prior to such New Issuance. The Company shall use its reasonable best efforts in accordance with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing DGCL, the Exchange, the Company Charter and selling of securities shall not be deemed a strategic partner)the Company Bylaws, (v) shares issued to pay part or all obtain the approval of the purchase price for the acquisition by stockholders of the Company for any issuance of a New Securities to Investor; provided, however, that no such approval shall delay the issuance of New Securities to any Person other than Investor.
(which, for purposes b) Investor may exercise its rights under this Section 4.2 by delivering written notice of this clause its election to purchase (v), shall not include an individual either directly or group of individualsthrough any other Investor Parties or their Investor Permitted Transferees) and (vi) shares issued in a bona fide public offering by such New Securities to the Company within ten (10) Business Days after receipt of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Issuance Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice notice shall describe in reasonable detail specify the proposed terms number of New Securities requested to be purchased by Investor. Delivery of such Subsequent Financing, notice shall constitute a binding commitment of Investor to purchase (either directly or through any other Investor Parties or their Investor Permitted Transferees) the amount of proceeds intended New Securities so specified at the Per Security Offering Price and on the terms and conditions specified in the Issuance Notice. If, at the termination of such ten (10) Business Day period, Investor has not exercised its right to purchase any such New Securities, Investor shall be raised thereunderdeemed to have waived its rights under this Section 4.2 with respect to, and only with respect to, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt purchase of the Subsequent Financing Notice New Securities specified in the applicable Issuance Notice.
(c) The closing of its willingness any sale of New Securities to enter into Investor, any other Investor Parties or otherwise provide (or Investor Permitted Transferees pursuant to cause its designee to provide), subject to completion this Section 4.2 shall take place concurrently with the consummation of mutually acceptable documentation, financing to the Company sale of the New Securities on substantially the terms set forth in the Subsequent Financing Issuance Notice to all other Persons purchasing such New Securities (the “New Issuance Closing”).
(d) If the Company issues, at the New Issuance Closing, less than all of the New Securities described in the Issuance Notice, then the number of New Securities that Investor (and any other Investor Parties and Investor Permitted Transferees) shall be entitled to purchase in connection with such New Issuance pursuant to this Section 4.2 shall be reduced proportionately and Investor’s notice delivered pursuant to Section 4.2(b) shall be deemed amended to reflect such reduction. If the Investor shall fail to notify the Company number of its intention to enter into such negotiations within such time periodNew Securities is reduced as contemplated by this Section 4.2(d), the Company may effect shall not issue or sell the Subsequent Financing substantially upon remainder of the terms and to the Persons (or Affiliates of such Persons) set forth New Securities described in the Subsequent Financing Issuance Notice without again complying with the provisions of this Section 4.2. If the Company issues, at the New Issuance Closing, more than the New Securities described in the Issuance Notice; provided, then the number of New Securities that Investor (and any other Investor Parties and Investor Permitted Transferees) shall be entitled to purchase in connection with such New Issuance pursuant to this Section 4.2 shall be increased proportionately and Investor’s notice delivered pursuant to Section 4.2(b) shall be deemed amended to reflect such increase.
(e) If the New Issuance Closing (other than any over-allotment closing) does not occur within ninety (90) days after the date of the Issuance Notice, the Company shall provide not issue or sell the New Securities described in the Issuance Notice without again complying with the provisions of this Section 4.2.
(f) Investor (or any other Investor Parties or Investor Permitted Transferees) shall, prior to the closing of any offering pursuant to Rule 144A (or a successor rule) under the Securities Act in which any of them has elected to purchase New Securities pursuant to this Section 4.2, execute and deliver all such documents and instruments as are customarily required in connection with such an offering and are reasonably requested by the Company, including, without limitation, customary investment representations and representations as to its status as the type of offeree to whom a second Subsequent Financing Noticeprivate sale may be made pursuant to the Securities Act, and the Investor any failure to deliver or enter into any such documents and instruments at or prior to such closing shall again have constitute a waiver of the right of first refusal set forth above in this Section 6.13 4.2 with respect to such New Issuance.
(a)g) Notwithstanding the foregoing provisions of this Section 4.2, if the Subsequent Financing subject to the initial Subsequent Financing Notice this Section 4.2 shall not apply and the Investor Entities shall have been consummated for no rights under this Section 4.2 if, at any reason on time, any Investor Entity intentionally breaches any of the terms set forth of this Agreement or the Confidentiality Agreement in any material respect and such Subsequent Financing Notice within sixty breach continues after written notice from the Company and a ten (6010) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeBusiness Day opportunity to cure.
Appears in 3 contracts
Sources: Shareholder Agreement (GNC Holdings, Inc.), Shareholder Agreements (GNC Holdings, Inc.), Securities Purchase Agreement (GNC Holdings, Inc.)
Right of First Refusal. The Company shall notagrees that, directly if, for the period ending thirty-six (36) months after the commencement of sales in the Offering, the Company or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity subsidiaries: (a) decides to finance or refinance any indebtedness, the Underwriter (or any affiliate designated by the Underwriter) shall have the right to act as sole book-runner, sole manager, sole placement agent or sole agent with respect to such financing or refinancing; or (b) decides to raise funds by means of a public offering (including at-the-market facility) or a private placement or any other capital raising financing of equity, equity-equivalent securities linked or those debt securities, the Underwriter (or any affiliate designated by the Underwriter) shall have the right to act as sole book-running manager, sole underwriter or sole placement agent for such financing. If the Underwriter or one of its Affiliates affiliates decides to accept any such engagement, the agreement governing such engagement (as defined each, a “Subsequent Transaction Agreement”) will contain, among other things, provisions for customary fees for transactions of similar size and nature, but in Rule 405 under no event will the Securities Act) in any transaction that is intended to fees be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directorsless than those outlined herein, and the issuance provisions of shares upon exercise this Agreement, including indemnification, that are appropriate to such a transaction. Notwithstanding the foregoing, the decision to accept the Company’s engagement under this Section 5.15 shall be made by the Underwriter or one of options grantedits affiliates, under any stock option plan heretofore or hereinafter duly adopted by a written notice to the Company, within ten (ii10) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all Calendar Days of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice Company’s notification of its willingness financing needs, including a detailed term sheet. The Underwriter’s determination of whether in any case to enter into or otherwise provide (or to cause exercise its designee to provide), subject to completion right of mutually acceptable documentation, financing first refusal will be strictly limited to the Company terms on substantially the terms set forth in the Subsequent Financing Noticesuch term sheet, and any waiver of such right of first refusal shall apply only to such specific terms. If the Investor Underwriter waives its right of first refusal, any deviation from such terms (including without limitation after the launch of a subsequent transaction) shall fail to notify void the waiver and require the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with seek a second Subsequent Financing Notice, and the Investor shall again have new waiver from the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticethis Section 5.15.
Appears in 3 contracts
Sources: Underwriting Agreement (Digital Ally, Inc.), Underwriting Agreement (Digital Ally, Inc.), Underwriting Agreement (Volcon, Inc.)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent Shares of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction Common Stock that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares you acquire upon exercise of options granted, under your option are subject to any stock option plan heretofore or hereinafter duly adopted by right of first refusal that may be described in the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock ’s bylaws in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by effect at such time the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of elects to exercise its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Noticeright; provided, however, that if there is no right of first refusal described in the Company shall provide the Investor with a second Subsequent Financing NoticeCompany’s bylaws at such time, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 described below will apply. The Company’s right of first refusal will expire on the first date upon which any security of the Company is listed (or approved for listing) upon notice of issuance on a national securities exchange or quotation system (the “Listing Date”).
(a)) Prior to the Listing Date, you may not validly Transfer (as defined below) any shares of Common Stock acquired upon exercise of your option, or any interest in such shares, unless such Transfer is made in compliance with the following provisions:
(i) Before there can be a valid Transfer of any shares of Common Stock or any interest therein, the record holder of the shares of Common Stock to be transferred (the “Offered Shares”) will give written notice (by registered or certified mail) to the Company. Such notice will specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee (or, if the Subsequent Financing subject to proposed Transfer is one in which the initial Subsequent Financing Notice shall holder will not have been consummated for any reason on receive cash, such as an involuntary transfer, gift, donation or pledge, the holder will state that no purchase price is being proposed), and the other terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date and conditions of the initial Subsequent Financing proposed Transfer. The date such notice is mailed will be hereinafter referred to as the “Notice with Date” and the Person (or an Affiliate record holder of such Person) identified in the Subsequent Financing Notice.Offered Shares will be hereinafter
Appears in 3 contracts
Sources: Option Agreement (Renren Inc.), Option Agreement (Renren Inc.), Option Agreement (Renren Inc.)
Right of First Refusal. The Subject to the terms and conditions specified in this Section 2.2, the Company shall nothereby grants to each Major Holder, directly or indirectlyeach Series C Investor and each Series B Investor (collectively, without the prior written consent “ROFR Holders”) a right of first refusal with respect to future sales by the Investor, offer, sell, grant any option to purchase, or otherwise dispose Company of (or announce any offer, sale, grant or any option to purchase or other disposition) any Additional Shares of its equity or equity-equivalent securities or those of its Affiliates Common Stock (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements Certificate of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partnerIncorporation), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing . Each Major Holder shall be affected, and attached entitled to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have apportion the right of first refusal set forth above hereby granted to it among itself and its partners and affiliates in this Section 6.13 such proportions as it deems appropriate.
(a) Subject to Section 2.2(e), each time the Company proposes to offer any Additional Shares of Common Stock, the Company shall first make an offering of such Additional Shares of Common Stock to each ROFR Holder in accordance with the following provisions:
(b) The Company shall deliver a notice in accordance with Section 4.3 below (the “Notice”) to each ROFR Holder stating: (i) its bona fide intention to offer such Additional Shares of Common Stock; (ii) the number of such Additional Shares of Common Stock to be offered; and (iii) the price and terms, if any, upon which it proposes to offer such Additional Shares of Common Stock.
(c) Within seven (7) calendar days after delivery of the Subsequent Financing subject Notice in accordance with Section 4.3 below, each ROFR Holder may elect to purchase or obtain, at the initial Subsequent Financing Notice shall not have been consummated for any reason price and on the terms set forth specified in the Notice, up to that portion of such Subsequent Financing Notice within Additional Shares of Common Stock which equals the proportion that the number of Registrable Securities then held by such ROFR Holder bears to the total number of Registrable Securities then-outstanding. The Company shall promptly, in writing, inform each ROFR Holder that elects to purchase all of the Additional Shares of Common Stock available to it (each, a “Participating ROFR Holder”) of any other ROFR Holder’s failure to do likewise. During the five (5) day period commencing after receipt of such notice, each Participating ROFR Holder shall be entitled to obtain that portion of the Additional Shares of Common Stock for which ROFR Holders were entitled to, but did not, subscribe equal to the proportion that the number of Registrable Securities then held by such Participating ROFR Holder bears to the total number of Registrable Securities then held by all Participating ROFR Holders who wish to purchase some of the unsubscribed Additional Shares of Common Stock.
(d) If all Additional Shares of Common Stock that ROFR Holders are entitled to obtain pursuant to Section 2.2(b) are not subscribed for as provided in Section 2.2(c), the Company may, during the sixty (60) Trading Days after day period following the date expiration of the initial Subsequent Financing Notice with period provided in Section 2.2(c), offer the Person (or an Affiliate remaining unsubscribed portion of such Person) identified Additional Shares of Common Stock to any person or persons at a price not less than that, and upon terms no more favorable to such person or persons than those, specified in the Subsequent Financing Notice. If the Company does not enter into an agreement for the sale of the Additional Shares of Common Stock within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Additional Shares of Common Stock shall not be offered unless first reoffered to the ROFR Holders in accordance herewith.
(e) The rights of first refusal of each ROFR Holder under this Section 2.2 may be transferred to the same parties, subject to the same restrictions, as any transfer of registration rights pursuant to Section 1.11.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Aratana Therapeutics, Inc.), Investors’ Rights Agreement (Aratana Therapeutics, Inc.), Investors’ Rights Agreement (Aratana Therapeutics, Inc.)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, Investor offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent FinancingSUBSEQUENT FINANCING") for a period of 180 days one year after the Effective Date, except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.34(c), (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (viv) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ), and (viv) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing NoticeSUBSEQUENT FINANCING NOTICE") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that PROVIDED THAT the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty thirty (6030) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person except as disclosed on Schedule 4(c).
Appears in 3 contracts
Sources: Investment Agreement (Can Cal Resources LTD), Investment Agreement (FTS Apparel Inc), Investment Agreement (Can Cal Resources LTD)
Right of First Refusal. (a) So long as at least twenty percent (20%) of the Shares that have been issued remain outstanding, the Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the “Offered Securities”), unless in each such case the Company shall have first complied with Article III of this Agreement.
(b) The Company shall notdeliver to each Investor a written notice of any proposed or intended issuance, directly sale or indirectlyexchange of Offered Securities (the “Offer”), without which Offer shall (i) identify and describe the prior written consent Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the InvestorOffered Securities to be issued, offersold or exchanged, sell(iii) identify the persons or entities, grant any option if known, to purchasewhich or with which the Offered Securities are to be offered, issued, sold or otherwise dispose exchanged, and (iv) offer to issue and sell to or exchange with such Investor (A) that number of the Offered Securities which represents the same percentage of the total Offered Securities as the number of shares of Common Stock into which all of the Company’s capital stock held by such Investor are convertible represents of the total number of outstanding shares of Common Stock (or announce any offerincluding all shares of the Company’s capital stock convertible into Common Stock, sale, grant or any option to counting such shares as if converted (the “Basic Amount”)) and (B) such additional portion of the Offered Securities as such Investor shall indicate it will purchase or acquire should any other disposition) any of Investor subscribe for less than its equity or equity-equivalent securities or those of its Affiliates Basic Amount (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from “Undersubscription Amount”). Each Investor shall have the registration requirements of the Securities Act (a "Subsequent Financing") right, for a period of 180 10 business days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all following delivery of the purchase price for Offer, to accept the acquisition Offer in the manner provided in paragraph 3.1(c) below. The Offer by its terms shall remain open and irrevocable until the earlier of the expiration of such 10-business-day period or the receipt by the Company of a Person notice from all of the Investors.
(whichc) To accept an Offer, for purposes of this clause (v)in whole or in part, shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor must deliver a written notice to the Company prior to the end of the 10-business-day period of the Offer, setting forth the portion of the Investor’s Basic Amount that such Investor elects to purchase and, if such Investor shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such Investor elects to purchase (the "Subsequent Financing Notice") “Notice of Acceptance”). If the Basic Amounts subscribed for by all Investors are less than the total Basic Amounts, then each Investor who has set forth an Undersubscription Amount in its intention Notice of Acceptance shall be entitled to effect such Subsequent Financingpurchase, which Subsequent Financing Notice shall describe in reasonable detail addition to the proposed terms of such Subsequent FinancingBasic Amounts subscribed for, the amount of proceeds intended to be raised thereunderUndersubscription Amount it has subscribed for; provided, however, that should the Person with whom such Subsequent Financing Undersubscription Amounts subscribed for exceed the difference between the total Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Investor who has subscribed for any Undersubscription Amount shall be affected, and attached entitled to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt purchase only that portion of the Subsequent Financing Notice of its willingness Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Investor bears to enter into or otherwise provide (or to cause its designee to provide)the total Undersubscription Amounts subscribed for by all Investors, subject to completion rounding by the Board of mutually acceptable documentation, financing Directors to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeextent it reasonably deems necessary.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Arsanis, Inc.), Investors’ Rights Agreement (Arsanis, Inc.), Investors’ Rights Agreement (Arsanis, Inc.)
Right of First Refusal. The Company 12.1 Save and except as provided in section 3.5 and article 4 hereof, neither party shall nottransfer, directly convey, assign, mortgage or indirectly, without the prior written consent grant an option in respect of the Investor, offer, sell, or grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option a right to purchase or other disposition) in any manner transfer or alienate all or any portion of its equity Interest or equity-equivalent securities or those rights under this Agreement otherwise than in accordance with this article.
12.2 Nothing in this article shall prevent:
(a) a sale by a party of all of its Affiliates (as defined Interest or an assignment of all its rights under this Agreement to an Affiliate provided that such Affiliate first complies with the provisions of section 12.10 and agrees with the other party in Rule 405 under writing to retransfer such Interest to the Securities Act) in any transaction that is intended originally assigning party before ceasing to be exempt from an Affiliate of such party;
(b) a variation pursuant to section 4.3; or
(c) a disposition pursuant to an amalgamation or corporate reorganization which will have the registration requirements effect in law of the Securities Act amalgamated or surviving company possessing all the property, rights and interests and being subject to all the debts, liabilities and obligations of each amalgamating or predecessor company.
12.3 Should a party (a the "Subsequent Financingtransferring party") intend to dispose of all or any portion of its Interest or rights under this Agreement it shall first give notice in writing to the other parties (the "other parties") of such intention together with the terms and conditions on which the transferring party intends to dispose of its Interest or a portion thereof or rights under this Agreement.
12.4 If a party (the "transferring party") receives any offer to dispose of all or any portion of its Interest or rights under this Agreement which it intends to accept, the transferring party shall not accept the same unless and until it has first offered to sell such Interest or rights to the other parties (the "other parties") on the same terms and conditions as in the offer received and the same has not been accepted by the other parties in accordance with section 12.6.
12.5 Any communication of an intention to sell pursuant to section 12.3 and 12.4 (the "Offer") shall be in writing delivered in accordance with article 14 and shall:
(a) set out in reasonable detail all of the terms and conditions of any intended sale;
(b) if it is made pursuant to section 12.3, include a photocopy of the Offer; and
(c) if it is made pursuant to section 12.4, clearly identify the offering party and include such information as is known by the transferring party about such offering party; and such communication will be deemed to constitute an Offer by the transferring party to the other parties to sell the transferring party's Interest or its rights (or a portion thereof as the case may be) under this Agreement to the other parties on the terms and conditions set out in such Offer. For greater certainty it is agreed and understood that any Offer hereunder shall deal only with the disposition of the Interest or rights of the transferring party hereunder and not with any other interest, right or property of the transferring party and such disposition shall be made solely for a monetary consideration.
12.6 Any Offer made as contemplated in section 12.5 shall be open for acceptance by the other parties for a period of 180 60 days after from the Effective Date, except (i) the granting date of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice Offer by the other parties.
12.7 If the other parties accept the Offer within the period provided for in section 12.6, such acceptance shall constitute a binding agreement of purchase and sale between the transferring party and the other parties, in proportion to their Interests, for the Interest or its willingness to enter into or otherwise provide rights (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to a portion thereof as the Company case may be) under this Agreement on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and conditions set out in such Offer.
12.8 If the other parties do not accept the Offer within the period provided for in section 12.6, the transferring party may complete a sale and purchase of its Interest or a portion thereof on terms and conditions no less favourable to the Persons (or Affiliates of such Persons) transferring party than those set forth out in the Subsequent Financing Notice; providedOffer and, that in the Company case of an Offer under section 12.4, only to the party making the original offer to the transferring party and in any event such sale and purchase shall provide be completed within nine months from the Investor with a second Subsequent Financing Notice, and the Investor shall again have expiration of the right of the other parties to accept such Offer or the transferring party must again comply with the provisions of this article.
12.9 If the other parties do accept the Offer within the period provided for in section 12.6 but fail to close the transaction contemplated thereby within 90 days following receipt of such Offer, the transferring party may complete a sale and purchase of its Interest or a portion thereof on any terms and conditions but in any event such sale and purchase shall be completed within nine months from the expiration of the right of the other parties to accept such Offer or the transferring party must again comply with the provisions of this article.
12.10 While any Offer is outstanding no other Offer may be made until the first refusal mentioned Offer is disposed of and any sale resulting therefrom completed or abandoned in accordance with the provisions of this article.
12.11 Before the completion of any sale by the transferring party of its Interest or rights or any portion thereof under this Agreement, the purchasing party shall enter into an agreement with the parties agreeing not to sell except on the same terms and conditions as set forth above out in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeAgreement.
Appears in 3 contracts
Sources: Option Agreement (Bayview Corp), Option Agreement (Bayview Corp), Option Agreement (Bayview Corp)
Right of First Refusal. The So long as any shares of Preferred Stock are outstanding, the Company shall notnot issue, directly sell or indirectlyexchange, without the prior written consent agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the InvestorCompany, offerincluding without limitation, sellPreferred Stock, grant (iii) any option to purchasedebt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise dispose of (or announce acquire any offer, sale, grant such equity security or any option such debt security of the Company, unless in each case the Company shall have first offered to sell up to two-thirds (66-2/3%), in the aggregate, of such securities (the “Offered Securities”) to each of the Investors (each an “Offeree” and collectively, the “Offerees”) as follows: Each Offeree shall have the right to purchase or other disposition(x) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements portion of the Offered Securities Act equal to the total Offered Securities multiplied by a fraction, the numerator of which is the total number of shares of Conversion Shares then held by such Offeree and the denominator of which is the total number of shares of Conversion Shares then held by all Investors (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a "Subsequent Financing") price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of 180 twenty (20) days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its from receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeoffer.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Demandware Inc), Investor Rights Agreement (Demandware Inc)
Right of First Refusal. The Company No stockholder shall notsell, directly assign, pledge, or indirectly, without the prior written consent in any manner transfer any of the Investorshares of stock of the corporation or any right or interest therein, offer, sell, grant any option to purchasewhether voluntarily or by operation of law, or by gift or otherwise, except by a transfer which meets the requirements hereinafter set forth in this bylaw:
(a) If the stockholder desires to sell or otherwise dispose transfer any of his shares of stock, then the stockholder shall first give written notice thereof to the corporation. The notice shall name the proposed transferee and state the number of shares to be transferred, the proposed consideration, and all other terms and conditions of the proposed transfer.
(or announce any offerb) For thirty (30) days following receipt of such notice, sale, grant or any the corporation shall have the option to purchase or other dispositionall (but not less than all) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after shares specified in the Effective Date, except (i) notice at the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants price and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice notice; provided, however, that, with the consent of the stockholder, the corporation shall have the option to purchase a lesser portion of the shares specified in said notice at the price and upon the terms set forth therein. In the event of a gift, property settlement or other transfer in which the proposed transferee is not paying the full price for the shares, and that is not otherwise exempted from the provisions of this Section 46, the price shall be deemed to be the fair market value of the stock of the corporation at such time as determined in good faith by the Board of Directors. In the event the corporation elects to purchase all of the shares or, with consent of the stockholder, a lesser portion of the shares, it shall give written notice to the transferring stockholder of its election and settlement for said shares shall be made as provided below in paragraph (d).
(c) The corporation may assign its rights hereunder.
(d) In the event the corporation and/or its assignee(s) elect to acquire any of the shares of the transferring stockholder as specified in said transferring stockholder’s notice, the Secretary of the corporation shall so notify the transferring stockholder and settlement thereof shall be made in cash within thirty (30) days after the Secretary of the corporation receives said transferring stockholder’s notice; provided that if the terms of payment set forth in said transferring stockholder’s notice were other than cash against delivery, the corporation and/or its assignee(s) shall pay for said shares on the same terms and conditions set forth in said transferring stockholder’s notice.
(e) In the event the corporation and/or its assignees(s) do not elect to acquire all of the shares specified in the transferring stockholder’s notice, said transferring stockholder may, within the sixty (60) Trading Days after day period following the date expiration or waiver of the initial Subsequent Financing Notice with option rights granted to the Person corporation and/or its assignees(s) herein, transfer the shares specified in said transferring stockholder’s notice which were not acquired by the corporation and/or its assignees(s) as specified in said transferring stockholder’s notice. All shares so sold by said transferring stockholder shall continue to be subject to the provisions of this bylaw in the same manner as before said transfer.
(f) Anything to the contrary contained herein notwithstanding, the following transactions shall be exempt from the provisions of this bylaw:
(1) A stockholder’s transfer of any or an Affiliate all shares held either during such stockholder’s lifetime or on death by will or intestacy to such stockholder’s immediate family or to any custodian or trustee for the account of such Personstockholder or such stockholder’s immediate family or to any limited partnership of which the stockholder, members of such stockholder’s immediate family or any trust for the account of such stockholder or such stockholder’s immediate family will be the general or limited partner(s) identified in of such partnership. “Immediate family” as used herein shall mean spouse, lineal descendant, father, mother, brother, or sister of the Subsequent Financing Noticestockholder making such transfer.
Appears in 3 contracts
Sources: Merger Agreement (Hyperion Therapeutics Inc), Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
Right of First Refusal. The If at any time while the Note is outstanding, Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option intends to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (enter into a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture financing with a strategic partner (a Person whose business is primarily pursuant to which it will issue Company securities that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) have or may have conversion rights of any kind, contingent, conditional or otherwise, in which the Company delivers number of shares that may be issued pursuant to such conversion right varies with the Investor a written notice (market price of the "Subsequent Financing Notice") of its intention to effect such Subsequent FinancingCommon Stock, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) are or may become convertible into Common Stock (including without limitation convertible debt, warrants or convertible preferred stock), with a conversion price that varies with the market price of the Common Stock, even if such security only becomes convertible following an event of default, the passage of time, or another trigger event or condition (such a financing, a “Future Offering”), then Company must first offer such opportunity to Investor shall not have notified the to provide such financing to Company by 5:00 p.m. (Salt Lake City time) on the fifth same terms as each respective Person’s term no later than five (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (605) Trading Days immediately prior to the Trading Day of the expected announcement of the Future Offering. Should Investor be unwilling or unable to provide such financing to Company within five (5) Trading Days from Investor’s receipt of notice of the Future Offering from Company, then Company may obtain such financing from that respective Person upon the exact same terms and conditions offered by Company to Investor, which transaction must be completed within 30 days after the date of the initial Subsequent Financing Notice notice. If Company does not receive the financing from the respective Person within 30 days after the date of the respective notice, then Company must again offer the financing opportunity to Investor as described above, and the process detailed above shall be repeated. For avoidance of doubt, the issuance of shares of Common Stock under, pursuant to, in exchange for or in connection with any contract or instrument, whether convertible or not, is deemed a Future Offering for purposes hereof if the Person number of shares of Common Stock to be issued is based upon or related in any way to the market price of the Common Stock, including, but not limited to, Common Stock issued in connection with a Section 3(a)(9) exchange, a Section 3(a)(10) settlement, or any other similar settlement or exchange. This Section 7 shall not apply to an Exempt Issuance (as defined below) or an Affiliate of such Person) identified in the Subsequent Financing Noticeto a registered offering made pursuant to a registration statement on Form S-1 or Form S-3.
Appears in 3 contracts
Sources: Note Purchase Agreement (Inpixon), Note Purchase Agreement (Inpixon), Note Purchase Agreement (Inpixon)
Right of First Refusal. The Company shall notnot issue, directly sell or indirectlyexchange, without the prior written consent agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the InvestorCompany, offerincluding without limitation, sellSeries D Preferred Shares, grant (iii) any option to purchasedebt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise dispose of (or announce acquire any offer, sale, grant such equity security or any option such debt security of the Company, unless in each case the Company shall have first offered to sell such securities (the "Offered Securities") to the Investors (each an "Offeree" and collectively, the "Offerees") as follows: Each Offeree shall have the right to purchase or other disposition(x) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements portion of the Offered Securities Act as the number of shares of Series D Preferred Stock then held by such Offeree bears to the total number of shares of Series D Preferred Stock held on such date by all Offerees (the "Basic Amount"), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the "Undersubscription Amount"), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the "Subsequent FinancingOffer") ), which Offer by its terms shall remain open and irrevocable for a period of 180 twenty-five (25) days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its from receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeoffer.
Appears in 3 contracts
Sources: Investor Rights Agreement (Voxware Inc), Investor Rights Agreement (Voxware Inc), Investor Rights Agreement (Voxware Inc)
Right of First Refusal. The All shares of Common Stock of the Company shall notbe subject to a right of first refusal on all transfers, directly or indirectlywhich right shall be subject to the exemptions set forth in Article X, without the prior written consent Sections 1(e) and 1(f) of the Company’s Amended and Restated Bylaws. In the event the Company elects not to exercise any right of first refusal or right of first offer the Company may have on a proposed transfer of any of the Company’s outstanding capital stock pursuant to the Company’s charter documents, by contract or otherwise, the Company shall, to the extent it may do so, assign such right of first refusal or right of first offer to each Major Investor. In the event of such assignment, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option each Major Investor shall have a right to purchase or other disposition) any its pro rata portion of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended capital stock proposed to be exempt from transferred. Each Major Investor’s pro rata portion shall be equal to the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except product obtained by multiplying (i) the granting of options or warrants to employees, officers and directors, and the issuance aggregate number of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted proposed to be transferred by the Company, (ii) a fraction, the numerator of which is the number of shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with Registrable Securities held by such Major Investor at the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all time of the proposed transfer and the denominator of which is the total number of Registrable Securities owned by all Major Investors at the time of such proposed transfer. If any Major Investors do not exercise in full this right of first refusal, the shares that would otherwise be allocated to such non-fully exercising Major Investors shall be allocated among the fully exercising Major Investors wishing to purchase price for the acquisition by remaining shares (the Company of “Over-Allotment”) on a Person pro-rata basis (whichcalculated in the same manner as above, provided, however, the denominator for purposes of this clause (v), such calculation shall not include an individual or group be the total number of individualsshares held by all Major Investors participating in such Over-Allotment) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers up to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect maximum shares specified by each such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing applicable Major Investor. The Major Investors shall be affected, entitled to apportion shares of Company capital stock purchasable hereunder among their respective partners and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth affiliates in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Noticeproportions as they deem appropriate; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)any such partner or affiliate shall, if the Subsequent Financing subject not already a party, agree to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or become a party to this Agreement as an Affiliate of such Person) identified in the Subsequent Financing Notice“Investor” hereunder.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Sagimet Biosciences Inc.), Investors’ Rights Agreement (Sagimet Biosciences Inc.), Investors’ Rights Agreement (Sagimet Biosciences Inc.)
Right of First Refusal. The (a) Three Business Days prior to the launch of any debt syndication (which, for the avoidance of doubt, shall include a debt syndication pursuant to Rule 144A) or placement using capacity to incur Pari Passu Secured Debt pursuant to clause (b)(ii) of the definition of Permitted Financial Indebtedness (“New Debt”), the Company shall not, directly or indirectly, without provide written notice to the prior written consent Trustee and beneficial owners of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any Notes of its equity intention to hold meetings with potential debt investors and will invite beneficial owners of the Notes to participate in the syndication or equity-equivalent securities placement process by contacting the Company or those of its Affiliates investment banking representative at an address specified in the notice; provided that in any placement where the Company has agreed with the financing providers to a Pricing (as defined in Rule 405 under below) that does not exceed the Securities ActAll-In Yield (determined as described below, the “All-In Yield”) in any transaction that is intended to be exempt from the registration requirements respect of the Securities Act Notes (a "Subsequent Financing"“Direct Placement”), such written notice shall not be required.
(b) At any time during such debt syndication or placement process in respect of the New Debt (other than a Direct Placement), upon the request of any Person that represents that it is a beneficial owner of Notes (a screen shot of such beneficial owner’s custodian account, a recently-dated letter from its custodian and/or proof of the custodian’s holding in the relevant clearing system shall constitute sufficient evidence for this purpose) and that its participation in such syndication or placement process will not be in violation of applicable securities laws, the Company shall promptly provide such Person with any marketing or syndication materials used in the syndication or placement of the New Debt to other potential investors, and invite such person to attend any roadshow or other marketing meetings held with senior management of the Company and other potential investors at reasonable times and locations.
(c) Prior to the signing of a period definitive underwriting, purchase or placement agreement, or definitive loan documentation, in respect of 180 days after New Debt (a “Pricing”), where the Effective Datemarket-clearing price for such New Debt represents an All-In Yield that exceeds the All-In Yield in respect of the Notes, except the Company shall set the market-clearing price based on indications of interest from all potential investors (including beneficial owners of the Notes) and shall accept orders to subscribe for such New Debt at such price from beneficial owners of the Notes in priority to other potential investors’ orders. Pricing of the New Debt (other than a Direct Placement) shall occur no earlier than the third Business Day following launch of any syndication, or the fifth Business Day following launch of any private placement, in respect of the New Debt. In determining the All-In Yield of both the New Debt and the Notes, (i) the granting of options original issue discount, arrangement fees, underwriting fees, upfront fees or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued other similar fees paid in connection with the capitalization New Debt (based on a four-year life to maturity or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities less remaining life to maturity) shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) included and (viii) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers interest rate floor applicable to the Investor a written notice New Debt and/or the Notes (as the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City timecase may be) on the fifth date of Pricing shall be equated to interest margin for determining the applicable All-In Yield; provided that any original issue discount, arrangement, underwriting, upfront or any other similar fees (5th“Fees”) Trading Day after its receipt payable in connection with the New Debt shall be excluded from such determination to the extent such amounts are (x) paid as consideration for arranging or underwriting the syndication or placement of the Subsequent Financing Notice New Debt, and not paid as compensation for lending and (y) not shared generally with, or paid away to, other lenders. Any fees that are not excluded pursuant to clause (x) or (y) of the immediately preceding sentence shall be paid to beneficial owners of the Notes subscribing for the New Debt on a pro rata basis to their subscription for the New Debt at the same time and on the same terms as which such Fees are paid to other lenders under the New Debt.
(d) In the event that there is oversubscription from the beneficial owners of the Notes for the New Debt and a beneficial owner of the Notes elects to subscribe for an amount of New Debt (other than a Direct Placement) that exceeds its willingness pro rata holding of the Notes, such beneficial owner’s subscription amount shall be scaled back to enter into or otherwise provide its pro rata holding (or to cause its designee to provide), subject to completion it being understood and agreed that any third parties who are not beneficial owners of mutually acceptable documentation, financing the Notes shall be scaled back in full before there is any scale back applied to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date beneficial owners of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeNotes).
Appears in 3 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option hereby grants to purchase, or otherwise dispose of (or announce any offer, sale, grant each Holder or any option of their transferees pursuant to Section 2.1(f) hereof (collectively, hereinafter, the "Rights Holders") the right of first refusal to purchase all or other disposition) any part of its equity or equity-equivalent securities or those pro rata share of its Affiliates New Securities (as defined in Rule 405 under this Section 2.1) which the Company may, from time to time, propose to sell and issue. For purposes of this right of first refusal, a pro rata share for a Rights Holder is the number of New Securities Act) in any transaction that is intended to be exempt from issued multiplied by the registration requirements ratio that the number of shares of Stock then held by or issuable to (assuming full conversion and exercise of the Subordinated Notes and the Senior Notes, respectively) such Rights Holder bears to the sum of the total number of shares of Stock then outstanding (assuming full conversion and exercise of the Subordinated Notes and the Senior Notes, respectively).
(a) Except as set forth below, "New Securities" shall mean any Equity Securities Act (a as defined below), whether now authorized or not. "Subsequent FinancingEquity Securities" shall mean any securities having voting rights in the election of the Board of Directors not contingent upon default, or any securities evidencing an ownership interest in the Company, or any securities convertible into or exercisable for any shares of the foregoing, or any securities issuable pursuant to any agreement or commitment to issue any of the foregoing. Notwithstanding the foregoing, ") for a period of 180 days after the Effective Date, except New Securities" does not include (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under Conversion Stock; (ii) stock issued in connection with any stock option plan heretofore split, stock dividend or hereinafter duly adopted recapitalization by the Company, (iiiii) shares of Common Stock issued upon exercise to officers, directors, employees or consultants of any currently the Company pursuant to stock grants, stock purchase and stock option plans or other stock incentive programs, agreements or arrangements approved by the Board of Directors unless such shares constitute greater than 10% of the Company's outstanding warrants and upon conversion Common Stock at the time of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Sharesissuance, (iv) shares of Common Stock or preferred stock of the Company issued in connection with the capitalization or creation issuable upon conversion, exercise or exchange of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner)currently outstanding warrants, or (v) shares securities issued pursuant to pay part or all of the purchase price for the acquisition of all or part of another company by the Company by merger or other reorganization, or by purchase or all or part of the assets of another company, pursuant to a Person (which, for purposes of this clause (v), shall not include an individual plan or group of individuals) and (vi) shares issued in a bona fide public offering arrangement approved by the Company Board of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeDirectors.
Appears in 3 contracts
Sources: Securityholders Agreement (Horizon Medical Products Inc), Securityholders Agreement (Horizon Medical Products Inc), Securityholders Agreement (Horizon Medical Products Inc)
Right of First Refusal. The Company shall notSubject to the terms and conditions specified in this Section 2.4, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company hereby grants to each Major Investor a right of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering first refusal with respect to each issuance by the Company of its Shares (and not as hereinafter defined). For purposes of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financingthis Section 2.4, the amount term “Major Investor” includes any general partners and affiliates of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing a Major Investor. A Major Investor shall be affected, and attached entitled to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have apportion the right of first refusal set forth above hereby granted it among itself and its partners and affiliates in this Section 6.13 such proportions as it deems appropriate. Each time the Company proposes to offer or issue any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock or any shares of phantom stock or stock appreciation rights (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a), if the Subsequent Financing subject ) The Company shall deliver a notice in accordance with Section 3.5 (“First Refusal Notice”) to the initial Subsequent Financing Notice Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares. If the consideration to be paid by others for such Shares is not cash, the fair market value of the consideration shall not have been consummated for any reason be determined in good faith by the Company’s Board of Directors and a reasonably detailed explanation of such determination of such value shall be included in the First Refusal Notice. All Major Investors electing to participate in the purchase of such Shares shall be entitled to pay the cash equivalent thereof as so determined.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of a First Refusal Notice, each Major Investor may elect to purchase, at the price and on the terms set forth specified in the First Refusal Notice, up to that portion of such Subsequent Financing Notice Shares that equals the proportion that the number of shares of Common Stock (as to each Major Investor, its “Pro Rata Portion”) held by such Major Investor (assuming full conversion or exercise of all convertible or exercisable securities then held by such Major Investor and the satisfaction of all conditions precedent to convertibility or exercisability) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding and the satisfaction of all conditions precedent to convertibility or exercisability). The Company shall promptly, in writing, inform each Major Investor that elects to purchase its full Pro Rata Portion of all the Shares available to it (a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, which is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Investor (assuming full conversion or exercise of all convertible or exercisable securities then held by such Fully-Exercising Investor and the satisfaction of all conditions precedent to convertibility or exercisability) bears to the total number of shares of Common Stock held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares (assuming full conversion or exercise of all convertible or exercisable securities then held by all such Full-Exercising Investors and the satisfaction of all conditions precedent to convertibility or exercisability).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the final period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the First Refusal Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) Trading Days after the date days of the initial Subsequent Financing Notice execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first refusal in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options exercisable for shares of Common Stock) to employees, directors, consultants and other service providers under the Company’s 2004 Stock Option Plan, as amended, or the Company’s 2016 Equity Incentive Plan, as amended, for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors; (ii) the issuance of securities pursuant to a Qualified Public Offering, as that term is defined in the Restated Certificate; (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the Effective Date or previously issued in a transaction to which the terms of this Section 2.4 were complied with; (iv) securities issued in connection with a bona fide business acquisition of another business entity by the Company other than for financing purposes, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, provided that such transaction is approved by the Company’s Board of Directors; (v) the issuance of securities issued or issuable pursuant to the exercise of warrants, options or other rights granted in connection with any loan arrangement, equipment lease, technology license, vendor or customer relationship or similar non-equity financing transaction approved by the Board of Directors, provided, that the aggregate number of shares of capital stock of the Company issued or issuable pursuant to this clause (v) may not exceed 400,000 shares of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like) (on a Common Stock equivalent basis); (vi) the issuance of any securities which, with the Person unanimous approval of the Board, are not offered to any existing shareholders or their affiliates, (vii) the issuance of any securities in connection with a stock split or an Affiliate dividend by the Company or (viii) the issuance of up to 137,423,317 shares of Series D Stock under the Purchase Agreement. In addition to the foregoing, the right of first refusal in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such Personoffering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) identified of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to an affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering, as that term is defined in the Subsequent Financing NoticeRestated Certificate, or (ii) a Liquidation Event other than an Asset Sale (as such term is defined in the Restated Certificate).
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Liquidia Technologies Inc), Investors’ Rights Agreement, Investors’ Rights Agreement (Liquidia Technologies Inc)
Right of First Refusal. (a) For a period of one year from the date of the definitive Prospectus, the Company and its officers and directors agree to consult with the Agent in respect of any prospective or actual public or private offering of securities of the Company (as such term is defined in this subsection (a) for cash other than to employees. For the purposes of this Section 27, the term, "securities of the Company" shall be deemed to include any debt or equity securities of the Company other than debt securities secured by chattel mortgages or equipment or property of the Company, the maturity date of which is less than two years, and which are offered by the Company for sale or sold by the Company only to commercial banks, insurance companies, recognized finance companies or pension trusts. Also specifically excluded are public offerings and/or private offerings of the Company's shares in exchange for properties, assets or stock of other individuals or corporations. The Company shall not, directly not be required to consult with the Agent concerning any borrowings from banks and institutional lenders or indirectly, without concerning financing under any equipment leasing or similar arrangements.
(b) For a period of one year from the prior written consent date of the Investordefinitive Prospectus, offer, sell, grant the Company will not enter into an agreement for any option public or private offering for cash (other than to purchase, or otherwise dispose employees) of (or announce any offer, sale, grant or any option to purchase or other disposition) any securities of its equity or equity-equivalent securities or those of its Affiliates (the Company as defined in Rule 405 under (a) to or through any person, firm or corporation other than the Securities ActAgent unless and until the Company shall have first negotiated for the sale of the Company's securities with or offered to sell its securities to the Agent. The Company shall notify the Agent in writing of the Company's intention to offer its securities in a covered offering and the terms (including the price to the Agent or other method of determining the underwriting discount or fee) in any transaction that is intended to be exempt and conditions of the proposed offering. The Agent shall then have 30 days from the registration requirements of date it receives such written notice from the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective DateCompany to decide whether it wishes to participate as manager, except (i) the granting of options co-manager, or warrants to employeesotherwise, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted as determined by the CompanyAgent, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Noticeoffering. If the Investor Agent determines that it does not wish to participate in the proposed offering, then it shall fail to so notify the Company of its intention to enter into such negotiations in writing within such time 30-day period, the . The Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates within a period of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after 30 days from the date of receipt of such notice then enter into a letter of intent for the initial Subsequent Financing Notice public sale or, as appropriate, a contract for the private sale, of any of it securities through any other person, firm or corporation on the same general terms and conditions as those which were tendered to the Agent. Provided, however, as to a public offering, if a definitive underwriting agreement with a firm commitment is not executed by the Company with such third party within 90 days thereafter, all the rights of the Agent hereunder shall be reinstated. Nothing in this Agreement shall be construed as granting the continuation of such preferential right on the part of the Agent beyond such one-year period. The Company shall not be required to consult with the Person (Agent concerning any borrowings from banks and institutional lenders or an Affiliate of such Person) identified in the Subsequent Financing Noticeconcerning financing under any equipment leasing or similar arrangements.
Appears in 2 contracts
Sources: Agency Agreement (Neosurg Technologies Inc), Agency Agreement (Neosurg Technologies Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, Investor offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent Financing") for a period of 180 days one year after the Effective Date, except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares Shares upon exercise of options granted, under any stock option plan heretofore or hereinafter hereafter duly adopted by the Company, Company or for services rendered or to be rendered; (ii) shares Shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in REPRESENTATIONS AND WARRANTIES OF THE COMPANY - continued each case disclosed in pursuant to Section 4.3, 4(c); (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner partner; (a Person whose business is primarily that of investing and selling of iv) securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ); and (viv) shares securities issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto thereto; and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, provided that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) thirty Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person disclosed on Schedule 4(c).
Appears in 2 contracts
Sources: Investment Agreement (12 to 20 Plus Inc), Investment Agreement (12 to 20 Plus Inc)
Right of First Refusal. The Company shall notnot issue, directly sell or indirectlyexchange, without the prior written consent agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any (i) shares of Common Stock, (ii) any other equity security of the InvestorCompany, offerincluding without limitation, sellpreferred shares, grant (iii) any option to purchasedebt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise dispose of (or announce acquire any offer, sale, grant such equity security or any option such debt security of the Company, unless in each case the Company shall have first offered to sell such securities (the “Offered Securities”) to the 30% Investors and each other person or entity, if any, that has such a right (each an “Offeree” and collectively, the “Offerees”) as follows: Each Offeree shall have the right to purchase or other disposition(x) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements portion of the Offered Securities Act as the number of shares of Common Stock then held (including shares then issuable upon the exercise or conversion of outstanding securities) by such Offeree bears to the total number of shares of issued and outstanding Common Stock of the Company calculated on a "Subsequent Financing"fully diluted basis to include (i) the total number of shares of Common Stock subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of 180 twenty (20) days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its from receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeoffer.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Vertical Communications, Inc.), Securities Purchase Agreement (Vertical Communications, Inc.)
Right of First Refusal. The Company shall not(a) Prior to an IPO or Deemed Winding Up, directly in the event that any Founder or indirectlyInvestor (the “Selling Stockholder”) desires to sell, without the prior written consent assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way (hereinafter referred to as “Transfer”) any or all of the Investor, offer, sell, grant any option shares of capital stock of the Company held by such Selling Stockholder (the “Offered Shares”) other than to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (a Permitted Transferee as defined in Rule 405 under Section 10 herein, and provided such Transfer is permitted in accordance with Section 5 below, it shall first give written notice thereof (“Notice of Sale”) to the Securities Act) in Company, and then, if the Company does not exercise its right to purchase all or any transaction that is intended to be exempt from the registration requirements portion of the Securities Act Offered Shares, the Company shall immediately thereafter provide the Notice of Sale to each Investor and Founder other than the Selling Stockholder (a "Subsequent Financing"together, the “Offerees”).
(b) The Notice of Sale shall state the material terms and conditions (including the number of Offered Shares, the name(s) of the prospective buyer(s), the intended date of the proposed Transfer, the price and form of consideration) for the Offered Shares as submitted to the Selling Stockholder.
(c) The Company (or its assignees) shall, for a period of 180 seven (7) days after following receipt of the Effective Date, except (i) Notice of Sale have the granting right to purchase all or any portion of options or warrants to employees, officers the Offered Shares upon the same terms and directors, and conditions specified in the issuance Notice of shares upon Sale. The Company may exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted such right only if approved by the Company’s Board, (ii) shares issued upon exercise including by the affirmative approval of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all at least two of the Investor Directors.
(d) For a period of fourteen (14) days after receipt of the Notice of Sale from the Company, the Offerees may elect to purchase price for up to their Pro Rata Share (as defined below) of the acquisition Offered Shares not purchased by the Company pursuant to Section 4(c) (the “Remaining Offered Shares”), by delivery of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing “Response Notice"”) to such effect to the Selling Stockholder (with a copy to the Company) within fourteen (14) days of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing NoticeSale; provided, however, that each Offeree may exercise his/her/its right only if he/she/it represents in the Response Notice that he/she/it is acquiring the Remaining Offered Shares for investment for his/her/its own account, and not for resale to any third party (other than a Permitted Transferee). The election to purchase any Remaining Offered Shares shall be irrevocable by the Offeree, once the Response Notice is delivered to the Selling Stockholder. If more than one of the Offerees exercises such option (the “Buying Stockholders”), each Buying Stockholder shall acquire his/her/its Pro Rata Share of the Remaining Offered Shares as defined below, or such other ratio of the Remaining Offered Shares as the Buying Stockholders may agree to between themselves. For the purpose of this Section 4, a Buying Stockholder’s “Pro Rata Share” shall mean the ratio between (x) the aggregate number of shares of Common Stock then held by such Buying Stockholder (on an as converted to Common Stock basis), and (y) the aggregate number of shares of Common Stock (on an as converted to Common Stock basis) held by all Buying Stockholders, as of the date immediately prior to the Notice of Sale. The purchase of the Remaining Offered Shares shall be on the same terms and conditions as stated in the Notice of Sale. Each Buying Stockholder shall have a right of overallotment such that, if any other Offeree fails to exercise his/her/its right to purchase its full Pro Rata Share of the Remaining Offered Shares, the other participating Buying Stockholders may purchase, on a pro rata basis among all Buying Stockholders, the Remaining Offered Shares not previously purchased for a period of five (5) business days following the receipt of a notice from the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in notifying such Subsequent Financing Notice within sixty (60) Trading Days after the date Buying Stockholders of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeother Offerees’ failure to so participate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Forescout Technologies, Inc), Investors’ Rights Agreement (Forescout Technologies, Inc)
Right of First Refusal. The (a) Until the IPO, each Investor is hereby granted a right of first refusal with respect to any proposed transfer by another Investor of all or any portion of such Investor's shares of the capital stock of the Company, other than to an Affiliate of such Investor; provided, however, that with respect to the Major Shareholders, the first 500,000 shares of the capital stock of the Company that are transferred by each of Skul▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Gudjon Mar Gudjonsson from and after the date of this Agreement shall notalso be exempt from the Right of First Refusal in this Section 4; provided, further, that if at any time until the IPO an Affiliate of an Investor who has received shares of the capital stock of the Company from an Investor proposes to enter into a transaction after which it will not be an Affiliate of such Investor, the shares of the capital stock of the Company owned by such Affiliate shall be subject to this Right of First Refusal in connection with such transaction as if such transaction was a proposed transfer for purposes of this Section 4 and such Affiliate was proposing to transfer shares of the capital stock of the Company itself. For purposes hereof, an "Affiliate" means, (i) with respect to any person or legal entity, any other person or legal entity that, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchasecontrols, or otherwise dispose is controlled by or is under common control with such person or legal entity and (ii) with respect to any person, such person's Family Members or a trust the sole current beneficiaries of which are such person's Family Members.
(or announce any offer, sale, grant b) If an Investor desires to accept a bona fide third-party offer for the transfer of all or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those such party's shares ("Target Shares"), such Investor (for purposes of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (this Section 4, a "Subsequent FinancingTransferor Shareholder") shall deliver to all other Investors a written notice ("Notice of Transfer") identifying the Target Shares and stating the terms and
(c) The other Investors shall, for a period of 180 ten (10) days after following receipt of the Effective DateNotice of Transfer, except have the right to elect to purchase the portion of the Target Shares which is equal to the proportion that the number of shares of the capital stock of the Company held by such Investor bears to the total number of shares of the capital stock of the Company held by the Investors who elect to purchase some portion of the Target Shares, upon the same terms and conditions specified in the Notice of Transfer. Such right shall be exercisable by delivery of written notice (i"Exercise Notice") to the Transferor Shareholder prior to expiration of the ten (10) day exercise period. The Exercise Notice shall set forth all or such portion of the Target Shares which such Investor elects to purchase. The closing of such transfer shall be held within the later of: (X) the granting twenty (20) day period following receipt of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted Exercise Notice by the Company, Transferor Shareholder or (iiY) shares issued upon exercise the twenty (20) day period following determination of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all non-cash value of the purchase price for the acquisition by the Company Board of a Person (which, for purposes Directors of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company or by an independent appraiser as described in Section 4(d).
(d) If the purchase price specified in the Notice of its (and not Transfer is payable in property other than cash or evidences of any indebtedness, each Investor shall have the right to pay the purchase price in the form of its stockholders') securities, unless (A) the Company delivers cash equal in amount to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms value of such Subsequent Financingproperty. The Board shall, the amount of proceeds intended to be raised thereunderin its sole discretion, the Person with whom determine such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Noticecash value. If the Investor Transferor Shareholder does not agree with the Board's valuation, then the valuation shall fail to notify be made by an independent appraiser selected by the Chief Executive Officer of the Company and approved by a majority in interest of its intention the Investors electing to enter into such negotiations within such time periodpay the purchase price in cash. The cost of the appraisal shall be fully borne by the party whose valuation is furthest, in monetary terms, from the Company may effect final valuation of the Subsequent Financing substantially upon independent appraiser.
(e) If the terms and right of any Investor is exercised with respect to all of the Persons (or Affiliates of such Persons) set forth Target Shares specified in the Subsequent Financing Notice; providedNotice of Transfer, that then such Investors shall consummate the Company shall provide purchase of the Investor with a second Subsequent Financing NoticeTarget Shares, including payment of the purchase price, on the same terms specified in the Notice of Transfer, and the Investor Transferor Shareholder shall again deliver an assignment of the Target Shares to the transferee(s).
(f) If the Investors exercise their right with respect to, in the aggregate, less than all the Target Shares specified in the Notice of Transfer, the Transferor Shareholder shall transfer to such Investors the portion of the Target Shares which the Investors have elected to purchase, with the remaining portion of the Target Shares being (i) transferred to the third-party offeror identified in the Notice of Transfer, on terms no more favorable to such third-party offeror than those specified in the Notice of Transfer or (ii) retained by the Transferor Shareholder, at the option of the Transferor Shareholder.
(g) If none of the Investors exercise their rights in accordance with this Section 4, the Transferor Shareholder shall be permitted to transfer the Target Shares upon terms and conditions (including the purchase price) no more favorable to such third-party offeror than those specified in the Notice of Transfer. If the Transferor Shareholder does not effect such transfer of the Target Shares within the specified period, the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject shall continue to the initial Subsequent Financing Notice shall not have been consummated for be applicable to any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date subsequent transfer of the initial Subsequent Financing Notice with Target Shares by the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeTransferor Shareholder.
Appears in 2 contracts
Sources: Shareholder Rights Agreement (Gudjonsson Gudjon Mar), Shareholder Rights Agreement (Oz Com)
Right of First Refusal. (a) The Company shall notnot issue, directly sell or indirectlyexchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without the prior written consent limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Investor, offer, sell, grant any option to purchaseCompany, or otherwise dispose (iv) any debt securities convertible into capital stock of the Company (collectively, the "Offered Securities"), unless in each such case the Company shall have first complied with Article IV of this Agreement. The Company shall deliver to each Preferred Investor a written notice of any proposed or announce any offerintended issuance, salesale or exchange of Offered Securities (the "Offer"), grant which Offer shall (i) identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or any option exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) identify the persons or entities, if known, to which or with which the Offered Securities are to be offered, issued, sold or exchanged, and (iv) offer to issue and sell to or exchange with such Preferred Investor such portion of 50% of the Offered Securities as is equal to a fraction, the numerator of which is the aggregate number of shares of Common Stock issued or issuable upon conversion of the Shares then held by such Preferred Investor and the denominator of which is the total number of shares of Common Stock issued or issuable upon conversion of all Shares then held by all Preferred Investors (the "Pro Rata Share"), plus an additional portion of 50% of the Offered Securities attributable to the Pro Rata Shares of other Preferred Investors as such Preferred Investor shall indicate it will purchase or acquire should the other disposition) any of its equity or equity-equivalent securities or those of its Affiliates Preferred Investors subscribe for less than their full Pro Rata Shares (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from "Undersubscription Amount"). Each Preferred Investor shall have the registration requirements of the Securities Act (a "Subsequent Financing") right, for a period of 180 20 days after following delivery of the Effective DateOffer, except (i) to purchase or acquire, at the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants price and upon conversion the other terms specified in the Offer, the number or amount of any currently outstanding convertible preferred stock Offered Securities described above. The Offer by its terms shall remain open and irrevocable for such 20-day period.
(b) To accept an Offer, in each case disclosed whole or in Section 4.3part, (iii) Put Sharesa Preferred Investor must deliver a written notice to the Company prior to the end of the 20-day period of the Offer, (iv) shares issued in connection with setting forth the capitalization or creation portion of a joint venture with a strategic partner such Preferred Investor's Pro Rata Share that such Preferred Investor elects to purchase and if such Preferred Investor shall elect to purchase all of its Pro Rata Share, the Undersubscription Amount, if any, that such Preferred Investor elects to purchase (a Person whose business is primarily that "Notice of investing and selling Acceptance"). If the Pro Rata Shares subscribed by all Preferred Investors are less than the total of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the Pro Rata Shares available for purchase, each Preferred Investor who had set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Pro Rata Share subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amount subscribed for exceed the difference between the total of all the Pro Rata Shares available for purchase price and the Pro Rata Shares subscribed for ("Available Undersubscription Amount"), each Preferred Investor who has subscribed for an Undersubscription Amount shall be entitled to purchase only that portion of the acquisition of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Preferred Investor bears to the total Undersubscription Amounts subscribed for by all Preferred Investors, subject to rounding by the Board of Directors to the extent it deems necessary.
(c) The Company shall have 90 days from the expiration of the 20-day period set forth in Section 1(a) to issue, sell or exchange all or any part of such Offered Securities as to which a Person (which, for purposes Notice of this clause (v), shall Acceptance has not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering been given by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice Preferred Investors (the "Subsequent Financing NoticeAvailable Securities") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject but only upon terms and conditions which are not more favorable, in the aggregate, to completion of mutually acceptable documentation, financing the acquiring person or persons or less favorable to the Company on substantially the terms than those set forth in the Subsequent Financing Notice. If Offer.
(d) Upon the Investor closing of the issuance, sale or exchange of all or less than all the Available Securities, the Preferred Investors shall fail to notify acquire from the Company, and the Company of its intention shall issue to enter into such negotiations within such time periodthe Preferred Investors, the Company may effect number or amount of Offered Securities specified in the Subsequent Financing substantially Notices of Acceptance, upon the terms and conditions specified in the Offer. The purchase by the Preferred Investors of any Offered Securities is subject in all cases to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; providedpreparation, that execution and delivery by the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall Preferred Investors of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Preferred Investors and the Company.
(e) Any Offered Securities not acquired by the Preferred Investors or other persons in accordance with Section 1(c) may not be issued, sold or exchanged until they are again have offered to the right of first refusal set forth above Preferred Investors under the procedures specified in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeArticle.
Appears in 2 contracts
Sources: Investor Rights Agreement (Airvana Inc), Investor Rights Agreement (Airvana Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without 9.3.1. Until the prior written consent tenth anniversary of the InvestorClosing, offer, sell, grant prior to any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined Transfer described in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, clause (ii) shares issued upon exercise (A) or (C) of Section 9.1.2 or any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock Transfer described in each case disclosed in Section 4.3, (iii) Put Shares, clauses (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued of Section 9.1.1 pursuant to pay part a tender or all of the purchase price for the acquisition exchange offer not recommended by the Company of a Person (whichBoard, for purposes of this clause (v), Investor shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor deliver a written notice (the "Subsequent Financing Offer Notice") of its intention to effect such Subsequent Financingthe Company, which Subsequent Financing Offer Notice shall describe specify (i) the number and amount and description of Equity to be sold or otherwise transferred, including the method of proposed distribution, (ii) the Offer Price (as defined in reasonable detail Section 9.3.2), (iii) in the case of a privately negotiated transaction described in clause (ii) (A) of Section 9.1.2, any other proposed terms of such Subsequent Financing, the amount Transfer including the identity of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing proposed transferees and a description of the nature of their respective businesses and (iv) in the case of a tender or exchange offer (A) shall be affected, and attached conditional upon tender by one or more Major A Stockholders of the requisite number of shares of Common Stock described in clause (iv) or (v) of Section 9.1.1 (without subsequent withdrawal of any such shares on or before the close of business on the Business Day immediately prior to which shall be a term sheet or similar document relating thereto the expiration date) and (B) in the Investor case of such clause (v) shall not have notified relate only to the Class B Stock permitted to be tendered thereunder. The Offer Notice shall constitute an irrevocable offer to the Company by 5:00 p.m. (Salt Lake City time) on or its designee, for the fifth (5th) Trading Day after its receipt period of time described below, to purchase such securities upon the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide)same terms specified in the Offer Notice, subject to completion Section 9.3.6.
9.3.2. For purposes of mutually acceptable documentationthis Section 9.3, financing "Offer Price" shall be defined to the Company mean on substantially the terms set forth a per share or other amount of Equity basis (i) in the Subsequent Financing Notice. If case of a Permitted Offering, the market value per share or other amount of Equity determined as provided below (the "Market Value" ) as of the date that the Investor shall fail to notify the Company of publicly announces its intention to enter into dispose of such negotiations within equity (a "Public Notice"), less the cost and expenses, including underwriting commissions, reasonably expected to be incurred by Investor and any of its United States subsidiaries in connection with such time periodPermitted Offering on a per share or other amount of Equity basis (ii) in the case of a privately negotiated transaction the proposed sales price per share or other amount of Equity and (iii) in the case of a third party tender offer or exchange offer, the Company tender offer or exchange offer price per share. For purposes of determination of the Offer Price in the case of a Permitted Offering, (A) the Market Value shall mean with respect to any security, the average of the daily closing prices on the NASDAQ National Market (or such principal exchange on which such security may effect be listed) for such security for the Subsequent Financing substantially upon 40 consecutive trading days commencing on the terms and 20th consecutive trading day prior to the Persons (or Affiliates date of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Public Notice, and (B) in the event Investor shall again have intend to sell in the Permitted Offering (by conversion to Class B Stock) any Class A Stock, such Class A Stock shall be valued as if it had been converted into Class B Stock as of the beginning of the 20th consecutive trading day prior to the date of the Public Notice. The closing price for each day shall be the closing price, if reported, or if the closing price is not reported, the average of the closing bid and asked prices, as reported by NASDAQ or a similar source selected from time to time by the Company for such purpose. (If Investor does not exercise its right of first refusal set forth above in this Section 6.13 (a)as provided herein, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate transfers of such Person) identified Equity shall be made only in the Subsequent Financing Noticecompliance with Article 9.)
Appears in 2 contracts
Sources: Investment Agreement (Monsanto Co), Investment Agreement (Monsanto Co)
Right of First Refusal. If at any time after the fifth anniversary of the Base Date and prior to a Public Offering (as hereinafter defined) the Management Stockholder receives a bona fide offer to purchase any or all of his shares of Stock (the "Offer") from a third party (the "Offeror") which the Management Stockholder wishes to accept, the Management Stockholder shall cause the Offer to be reduced to writing and shall notify the Company in writing of his wish to accept the Offer. The Management Stockholder's notice shall contain an irrevocable offer to sell such shares of Stock to the Company (in the manner set forth below) at a purchase price equal to the price contained in, and on the same terms and conditions of, the Offer, and shall be accompanied by a true copy of the Offer (which shall identify the Offeror). At any time within 30 days after the date of the receipt by the Company of the Management Stockholder's notice, the Company shall not, directly or indirectly, without have the prior written consent of the Investor, offer, sell, grant any right and option to purchase, or otherwise dispose of (or announce any offerto arrange for a third party to purchase, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements all of the Securities Act (a "Subsequent Financing") for a period shares of 180 days after Stock covered by the Effective Date, except Offer either (i) at the granting same price and on the same terms and conditions as the Offer or (ii) if the Offer includes any consideration other than cash, then at the sole option of options or warrants to employeesthe Company, officers and directorsat the equivalent all cash price, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted determined in good faith by the Company's Board of Directors, by delivering a certified bank check or checks in the appropriate amount (iiand any such non-cash consideration to be paid) to the Management Stockholder at the principal office of the Company against delivery of certificates or other instruments representing the shares issued upon exercise of any currently outstanding warrants and upon conversion Stock so purchased, appropriately endorsed by the Management Stockholder. If at the end of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3such 30 day period, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall Company has not be deemed a strategic partner), (v) shares issued to pay part or all of tendered the purchase price for such shares in the acquisition manner set forth above, the Management Stockholder may during the succeeding 30 day period sell not less than all of the shares of Stock covered by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers Offer to the Investor Offeror at a written notice (price and on terms no less favorable to the "Subsequent Financing Notice") of its intention to effect Management Stockholder than those contained in the Offer. Promptly after such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financingsale, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing Management Stockholder shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention the consummation thereof and shall furnish such evidence of the completion and time of completion of such sale and of the terms thereof as may reasonably be requested by the Company. If, at the end of 30 days following the expiration of the 30 day period for the Company to enter into such negotiations within such time periodpurchase the Stock, the Company may effect Management Stockholder has not completed the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates sale of such Persons) set forth shares of the Stock as aforesaid, all the restrictions on sale, transfer or assignment contained in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor this Agreement shall again have the right of first refusal set forth above be in this Section 6.13 (a), if the Subsequent Financing subject effect with respect to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date shares of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeStock.
Appears in 2 contracts
Sources: Management Stockholder's Agreement (Amphenol Corp /De/), Management Stockholder's Agreement (Amphenol Corp /De/)
Right of First Refusal. From the date hereof until the earlier of (i) June 15, 2004 or (ii) a Change of Control (as defined below), if Employee desires to sell more than 10,000 shares of Company common stock in any one month, Employee shall irrevocably offer (in a written instrument delivered to the Company) to sell such shares of his Company common stock registered in Employee’s name to the Company for the price and on the terms specified on Exhibit A attached hereto. The Company shall not, directly or indirectly, without the prior written consent accept such offer within 24 hours of the Investor, actual receipt of such offer and consummate such transaction within 3 business days after acceptance of such offer, sell, grant any option . If the Company does not so elect to purchasepurchase all, or otherwise dispose any portion, of (or announce any offersuch shares of stock, the right to purchase such stock pursuant to such offer shall terminate and Employee may sell such shares in the open market. Any sale pursuant to this Section 4 shall take place at the principal corporate office of the Company. At the closing of such sale, grant Employee shall assign and deliver the certificates representing such stock (duly endorsed for transfer and free of any liens or any option encumbrances whatsoever) to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directorsCompany, and the issuance of shares upon exercise of options grantedCompany shall deliver to Employee in certified funds the full consideration therefor as specified hereunder. Any stock transfer or similar taxes involved in such sale shall be paid by Employee, under any stock option plan heretofore or hereinafter duly adopted by and Employee shall provide the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection Company with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all such evidence of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) Employee’s authority to sell hereunder and (vi) shares issued in a bona fide public offering by the Company of its (such tax lien waivers and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, instruments as the Company may effect the Subsequent Financing substantially upon the terms and reasonably request. Notwithstanding anything to the Persons (or Affiliates of such Persons) set forth in contrary herein, the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the Company’s right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice 4 shall not have been consummated for any reason on apply to gifts or charitable donations of Employee’s shares of Company common stock. During the terms period set forth in such Subsequent Financing Notice this Section 4, Employee agrees to provide notice to the Company of a sale by Employee of 10,000 shares or less of Company common stock within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate three business days of such Person) identified in the Subsequent Financing Noticesale.
Appears in 2 contracts
Sources: Termination Agreement (Investools Inc), Termination Agreement (Investools Inc)
Right of First Refusal. The Company shall not, (a) If Franchisee receives an acceptable bona fide offer from a third party (“Offer”) to directly or indirectlyindirectly purchase (i) a Franchised Restaurant, without any portion thereof or interest therein, or any asset material to the operation of a Franchised Restaurant or (ii) any Equity Securities in Franchisee (individually and collectively, the “Assets”), Franchisee must give FRANCHISOR written notice (“Offer Notice”) offering to sell the Assets to FRANCHISOR or its assignee at the same purchase price and otherwise on substantially the same terms and conditions and setting out the name and address of the prospective purchaser, the price and other terms of the Offer, a copy of the proposed sale agreement for the Assets to be executed by both Franchisee and purchaser, together with such other information and documentation as FRANCHISOR may reasonably request in order to evaluate the Offer, including all material exhibits, copies of real estate purchase agreements, proposed security agreements and related promissory notes, assignment documents, leases, deeds, surveys, title insurance commitments and policies and copies of all title exceptions and any other material information FRANCHISOR may request, a franchise application completed by the prospective purchaser, references, and the opportunity to interview the prospective purchaser and/or its officers. For the avoidance of doubt, F▇▇▇▇▇▇▇▇▇’s right of refusal under this clause 14.3(a) shall not apply to any offers of Equity Securities in any direct or indirect holding company of Parent.
(b) If the consideration offered by the third party is not in cash, Franchisee must offer to sell the Assets to FRANCHISOR at the fair market value, which, failing agreement between FRANCHISOR and Franchisee, will be determined by an independent expert mutually agreed to by the parties, and the Offer will be deemed to have been made on the date the fair market value is agreed or determined.
(c) A bona fide Offer from a third party includes any Transfer consolidation, merger or any other transaction in which legal or beneficial ownership of the franchise granted by this Agreement or any Equity Securities held by a principal under clause 4.2, is vested in any Person other than Franchisee or that principal but excludes any Transfer between the shareholders who directly and indirectly hold any interest in the Franchisee as of the date of this Agreement or any consolidation, merger or any other transaction between the Franchisee and the Affiliates or subsidiary of the Franchisee or such principal.
(d) FRANCHISOR or its assignee has the right and the option, exercisable within 30 days from receipt of an Offer Notice, and all other requested documentation and information required under clause 14.3(a) (“Offer Period”), to accept the Offer. Silence on the part of FRANCHISOR shall constitute rejection of the Offer.
(e) FRANCHISOR or its assignee may accept the Offer contained in the Offer Notice by giving notice of acceptance to Franchisee before the expiration of the Offer Period (“Acceptance Notice”).
(f) The Acceptance Notice may contain terms which vary from the terms of the Offer Notice if the terms upon which FRANCHISOR or its assignee agrees to buy the Assets are not commercially less favorable to Franchisee than those contained in the Offer Notice. Further, the Acceptance Notice may reject any provision or condition that is inconsistent with Franchisee’s material obligations under this Agreement or the effect of which would be to materially increase the cost to, or otherwise change in any material respects the economic terms imposed on, FRANCHISOR or its assignee, as a result of the substitution of FRANCHISOR or its assignee (as applicable) for the prospective purchaser. Any such provision or condition is void and unenforceable against FRANCHISOR. CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND IS THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL HAVE BEEN REDACTED PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [****] INDICATES THAT INFORMATION HAS BEEN REDACTED.
(g) If Franchisee receives the Acceptance Notice during the Offer Period, Franchisee must sell and FRANCHISOR or its assignee must purchase the Assets upon the terms and conditions contained in the Offer Notice, as such terms may be varied by the Acceptance Notice as set forth above.
(h) Acceptance will constitute a binding contract and FRANCHISOR or its assignee and Franchisee shall complete the sale and purchase with all reasonable speed, subject to (i) all of the closing conditions set forth in the proposed sale agreement; (ii) obtaining any necessary consents and estoppels from landlords or others which Franchisee must use reasonable efforts to obtain; and (iii) satisfaction with the results of a due diligence investigation of the Assets, as conducted by FRANCHISOR or its assignee over a period of not less than sixty (60) days, commencing on the date of the Acceptance Notice. Franchisee will use reasonable efforts to assist FRANCHISOR in obtaining any necessary consents and estoppels from landlords or others and conducting a due diligence investigation of the Assets.
(i) If FRANCHISOR rejects Franchisee's offer to sell the Assets or any portion thereof, as the case may be, Franchisee may conclude the sale to the purchaser named in the Offer Notice on terms not more favorable to the purchaser than those offered to FRANCHISOR, subject to obtaining the prior written consent of FRANCHISOR as required under this Agreement.
(j) If the Investor, offer, sell, grant any option sale to purchasethe purchaser has not been completed within ninety (90) days of obtaining FRANCHISOR’s consent, or otherwise dispose such longer time as may be reasonably required to obtain the consent of any landlord or other Person, FRANCHISOR may at any time thereafter withdraw its consent to the Transfer by giving written notice to Franchisee. If Franchisee thereafter wishes to proceed with the sale of the Assets on the same commercial terms to the same prospective purchaser, Franchisee is not required comply with this clause 14.3 (right of first refusal) but must obtain FRANCHISOR’s prior consent to the Transfer.
(k) The election by FRANCHISOR not to exercise its right of first refusal as to any Offer will not affect its right of first refusal as to any subsequent Offer.
(l) If the proposed sale of the Assets includes material assets of Franchisee not related to the operation of Popeyes Restaurants, FRANCHISOR or announce any offerits assignee may, saleat its option, grant or any option elect to purchase only the assets related to the operation of Popeyes Restaurants and an equitable purchase price will be allocated to each asset included in the proposed sale.
(m) Any Transfer or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements attempted Transfer of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock interests described in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have 14.3 without first giving FRANCHISOR the right of first refusal set forth as described above shall be void and of no force and effect, and shall constitute a material act of default hereunder and deemed good cause for termination of this Agreement.
(n) The right of first refusal in this Section 6.13 (a), clause 14.3 shall not apply if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth Development Rights are in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeeffect.
Appears in 2 contracts
Sources: Share Purchase Agreement (TH International LTD), Share Purchase Agreement (TH International LTD)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, Investor offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent Financing") for a period of 180 days one year after the Effective Date, except (iI) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter hereafter duly adopted by the Company, Company or for services rendered or to be rendered; (iiII) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.3, 4(c); (iiiIII) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner partner; (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (vIV) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ); and (viV) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto thereto; and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, provided that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) thirty Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person disclosed on Schedule 4(c).
Appears in 2 contracts
Sources: Investment Agreement (Force Protection Inc), Investment Agreement (Locateplus Holdings Corp)
Right of First Refusal. The Company provisions of this Section 10 shall notexpire at such time as there has been sold or distributed to the public in a spin-off or in one or more underwritten public offerings pursuant to one or more Registration Statements filed with, directly or indirectlyand declared effective by, without the prior written consent of Commission under the Investor, offer, sell, grant any option to purchase, Securities Act.
(a) Each Management Investor agrees that such Management Investor will not sell or otherwise dispose of all or any portion of the Management Stock held by such Management Investor unless such sale or disposition (i) involves only those shares of Management Stock (a) with respect to which the Restrictions have lapsed, and (b) are no longer subject to any of the options provided in Section 5 hereof, and (ii) is made (a) for consideration that is payable in cash or announce any offer, cash equivalents at the time of sale, grant or any option (b) only in strict accordance with and after full compliance with the provisions of this Section 10.1, and (c) pursuant to a good faith offer to purchase such Management Stock in writing from a responsible third party. In the event of any such proposed sale or other disposition, the Management Investor proposing to make such sale or other disposition (the "Selling Investor") any will give notice to the Company and concurrently to FHP containing a complete description of its equity or equity-equivalent securities or those the transaction proposed (the "Proposal"), including the number of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended shares of Management Stock proposed to be exempt sold or otherwise disposed of (the "Transfer Shares"), the consideration to be paid per Transfer Share and the names of all other parties to, and all other material terms of, the proposed transaction, and a copy of the written offer from the registration requirements third party.
(b) For a period of thirty (30) business days after delivery of the Securities Act Proposal (a the "Subsequent FinancingFHP Option Period"), FHP shall have the sole and exclusive right to purchase all or any portion of the Transfer Shares owned by the Selling Investor for the consideration stated in the Proposal and on such other terms and conditions as those offered to the Selling Investor as set forth in the Proposal.
(c) If within the FHP Option Period FHP does not exercise the option provided in subsection (b) above as to all of the Transfer Shares, then for a period of 180 ten (10) days (the "Company Option Period") commencing upon the expiration of the FHP Option Period (or such earlier time as FHP has either given notice of exercise pursuant to (e) below or has advised the Selling Investor that it does not intend to exercise such option), the Company shall have the sole and exclusive right to purchase all or any portion of the remaining Transfer Shares for the consideration and on the other terms and conditions set forth in the Proposal.
(d) After expiration of the FHP Option Period and the Company Option Period, if FHP and the Company have not exercised their respective options so as to purchase, in the aggregate, all of the Transfer Shares proposed to be sold by the Selling Investor, then none of such Transfer Shares will be sold to either of said parties, and within a period ending sixty (60) days after the Effective Dateexpiration of the Company Option Period, except the Selling Investor may sell or otherwise dispose of the Transfer Shares as are the subject of the Proposal, but (i) only for cash or cash equivalents, and (ii) only in strict accordance with the terms and provisions set forth in the Proposal.
(e) Any option granted under this Section 10.1 may be exercised by notice in writing to the Selling Investor and the Company stating that such option is exercised.
(f) In the event that the options under this Section 10.1 have been exercised so as to purchase all of the Transfer Shares proposed to be sold by the Selling Investor, delivery of the certificate or certificates evidencing the Transfer Shares, properly endorsed, shall be made by the Selling Investor against payment therefor within ten (10) days after the expiration of the Company Option Period at the principal office of the Company, unless a different time and place or both is agreed upon by the parties to such transaction, and the total purchase price with respect to such option shall be paid in the manner and at the time or times specified in the Proposal.
(g) Notwithstanding anything to the contrary contained in this Agreement, a Management Investor shall be permitted to transfer those shares of such Management Investor's Management Stock with respect to which the Restrictions have lapsed, to a Permitted Transferee (as defined below) of such Management Investor. For purposes of this Agreement, "Permitted Transferee" shall mean (i) any member of the immediate family of such Management Investor, (ii) any trust, all of the beneficiaries of which are members of the immediate family of such Management Investor, or (iii) the estate or personal representative of such Management Investor if such Management Investor is deceased; PROVIDED, HOWEVER, that any Permitted Transferee to whom such shares of Management Stock are transferred pursuant to this paragraph (g) shall be required, as a condition of such transfer, to execute and deliver a written assumption agreement by which such assignee assumes all rights and obligations of a Management Investor under this Agreement, including but not limited to (i) the granting of options or warrants to employees, officers and directorsrestrictions imposed by Sections 5 hereof, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise the rights and obligations of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock FHP under Section 6 hereof. Any reference to a "Management Investor" contained in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities this Agreement shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeManagement Investor's Permitted Transferees.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Talbert Medical Management Holdings Corp), Stock Purchase Agreement (Talbert Medical Management Holdings Corp)
Right of First Refusal. (a) Except as provided in Section 8.2 hereof, the Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of Preferred Stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into equity securities of the Company (collectively, the "Offered Securities"), unless in each such case the Company shall have first complied with this Section 8.
(b) The Company shall notdeliver to each Investor a written notice of any proposed or intended issuance, directly sale or indirectlyexchange of Offered Securities (the "Offer"), without which Offer shall (i) identify and describe the prior written consent Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Offered Securities Act) in any transaction that is intended to be exempt from issued, sold or exchanged, (iii) identify the registration requirements persons or entities, if known, to which or with which the Offered Securities are to be offered, issued, sold or exchanged, and (iv) offer to issue and sell to or exchange with such Investor (A) that number of the Offered Securities Act which represents the same percentage of the total Offered Securities as the number of shares of Common Stock held by such Investor (a including all shares of the Company's capital stock convertible into Common Stock, counting such shares as if converted) represents of the total number of outstanding shares of Common Stock (including all shares of the Company's capital stock convertible into Common Stock, counting such shares as if converted) (the "Subsequent FinancingBasic Amount"), and (B) such additional portion of the Offered Securities as such Investor shall indicate it will purchase should the other Investors subscribe for less than their Basic Amounts (the "Undersubscription Amount"). Each Investor shall have the right, for a period of 180 15 days after following delivery of the Effective DateOffer, except to accept the Offer in the manner provided in paragraph (c) below. The Offer by its term shall remain open and irrevocable for such 15-day period.
(c) To accept an Offer, in whole or in part, an Investor must deliver a written notice to the Company prior to the end of the 15-day period of the Offer, setting forth the portion of the Investor's Basic Amount that the Investor elects to purchase and, if such Investor shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such Investor elects to purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed for by all Investors are less than the total Basic Amounts, then each Investor who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that should the Undersubscription Amounts subscribed for exceed the difference between the total Basic Amounts and the Basic Amounts subscribed for (the "Available Undersubscription Amount"), each Investor that has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Investor bears to the total Undersubscription Amounts subscribed for by all Investors, subject to rounding by the Board of Directors to the extent it reasonably deems necessary.
(d) In the event that Notices of Acceptance are not given by Investors in respect of all the Offered Securities, the Company shall have 90 days from the expiration of the 15-day period set forth in Section 8.1(b) hereof, to issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Investors (the "Refused Securities"), but only to the offerees or purchasers described in the Offer and only upon terms and conditions (including, without limitation, unit prices and interest rates) which are not more favorable, in the aggregate, to the acquiring person or persons or less favorable to the Company than those set forth in the Offer.
(e) In the event the Company shall propose to sell less than all the Refused Securities, then each Investor may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that the Investor elected to purchase pursuant to Section 8.1(c) hereof, multiplied by a fraction (i) the granting numerator of options which shall be the number or warrants amount of Offered Securities the Company actually proposes to employeesissue, officers sell or exchange (including Offered Securities to be issued or sold to the Investors pursuant to Section 8.1(c)hereof prior to such reduction) and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise the denominator of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities which shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended all Offered Securities. In the event that an Investor so elects to be raised thereunder, reduce the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet number or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after amount of Offered Securities specified in its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time periodAcceptance, the Company may effect not issue, sell or exchange more than the Subsequent Financing substantially reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Investors in accordance with Section 8.1(b) hereof.
(f) Upon the closing of the issuance, sale or exchange of all or less than all the Refused Securities, the Investors shall acquire from the Company, and the Company shall issue to the Investors, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 8.1(e) hereof if the Investors have so elected, upon the terms and conditions specified in the Offer. The purchase by an Investor of any Offered Securities is subject in all cases to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; providedpreparation, that execution and delivery by the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall participating Investors of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Investors and the Company.
(g) Any Offered Securities not acquired by the Investors or other persons in accordance with Section 8.1(d) hereof may not be issued, sold or exchanged until they are again have offered to the right of first refusal set forth above Investors under the procedures specified in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice8.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Inverness Medical Innovations Inc), Stock Purchase Agreement (Inverness Medical Innovations Inc)
Right of First Refusal. A. The Company DavCo Parties, the Control Block Principals and the Permitted Transferees hereby acknowledge and agree that Wendy’s shall nothave at all times following the Initial Consent Date, directly and hereby confirm that they have granted to Wendy’s, a right of first refusal to acquire the interests or indirectly, without assets proposed to be Transferred or issued in the prior written consent event of any of the Investorfollowing (individually and collectively, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except “Proposed Transfer”): (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted a proposed Transfer by the Companyholder thereof of any Equity Interest in DavCo Operations, (ii) shares issued upon exercise a proposed Transfer of any currently outstanding warrants portion of the Control Block Shares pursuant to Sections 3.C(4), 3.C(5) or 3.C(6) hereof (and upon conversion each of any currently outstanding convertible preferred stock in the Control Block Principals and each case disclosed in Permitted Transferee acknowledges and agrees that if Wendy’s exercises its right of first refusal to purchase all of the Control Block Shares pursuant to Section 4.33.C(4), such purchase shall be on the same terms and conditions as those offered by the Majority Control Block Principal’s prospective Transferee), (iii) Put Sharesthe proposed issuance of any Equity Interests in any private or public sale or offering of any Equity Interests in DavCo Operations or DavCo Restaurants, (iv) a proposed Transfer of one or more Restaurants or any of the Franchise Contracts executed by Franchisees, or (v) a direct or indirect proposed Transfer of all or substantially all of the Wendy’s business or the assets of the business or of any part of the Wendy’s business or assets such that the assets proposed to be transferred comprise all or substantially all of the assets of one or more Restaurants; provided, however, that this right of first refusal shall not be applicable to (v) the exchange of existing common stock of DavCo Restaurants for Class B Common Stock in the Recapitalization, (w) any Permitted Asset Transfer, (x) a Transfer by the holders thereof of outstanding Class A Common Stock, Class B Common Stock, Subordinated Notes or ▇▇▇▇ (other than Control Block Shares, as provided in clause (ii) above), (y) a Transfer resulting from the repurchase by DavCo Restaurants of shares issued of Class B Common Stock from CVC for cash on hand and a portion of the proceeds of the Offering, including the exercise of an over-allotment option granted for ▇▇▇▇ offered in the Offering as described in the final prospectus distributed in connection with the capitalization Offering, or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (Az) the Company delivers issuance of Common Stock or ▇▇▇▇ pursuant to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent FinancingLTIP, the amount of proceeds intended Reinvestment Plan or any other employee stock incentive plan adopted by DavCo Restaurants and that has been approved by Wendy’s. Failure to be raised thereunder, the Person comply with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above shall constitute a default hereunder and under the Franchise Contracts entitling Wendy’s to exercise all of its rights and remedies hereunder and thereunder. Any permitted buyer or transferee of the assets described in clauses (iv) and (v) of this Section 6.13 (a)4.A shall be required to execute and deliver Wendy’s then current standard form of franchise agreement. The foregoing rights of first refusal shall be binding upon any buyer or transferee. As used herein, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.term “Equity
Appears in 2 contracts
Sources: Agreement and Consent to Assignment (Friendco Restaurants Inc), Agreement and Consent to Assignment (Davco Acquisition Holding Inc)
Right of First Refusal. The Company shall not(a) If, directly at any time after the effective date of this Agreement and prior to the earlier to occur of a Change of Control or indirectly, without the prior written consent consummation of the InvestorInitial Public Offering, offer, sell, grant the Stockholder proposes to Transfer any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements all of the Securities Act Stockholder’s Restricted Stock, to the extent permitted by the Restricted Stock Agreement and as permitted by this Agreement, to a third party (any proposal a "Subsequent Financing"“Proposed Sale” and any such third party, the “ROFR Transferee”) for a period of 180 days after the Effective Date, except (other than any Transfer (i) pursuant to clauses (III), (IV) or (V) of Section 2(a), to the granting extent made to a third party, (ii) pursuant to a Permitted Transfer of options the type described in clauses (a), (c) or warrants (d) thereof or (iii) to employees, officers and directorsa limited partner of Parent or an Affiliate of such limited partner, and otherwise in accordance with this Agreement), the issuance Stockholder (the “Selling Stockholder”) shall notify the Company in writing of the Stockholder’s intention to Transfer such Restricted Stock (such written notice, a “ROFR Notice”). The ROFR Notice shall include a true and correct description of the number of shares upon exercise of options grantedRestricted Stock to be Transferred and the material terms of such proposed Transfer and a copy of any proposed documentation to be entered into with any ROFR Transferee in respect of such Transfer and shall contain an irrevocable offer to sell such Restricted Stock to the Company (in the manner set forth below) at a purchase price equal to the price contained in, under and on the same terms and conditions of, the ROFR Notice.
(b) The Company and/or any stock option plan heretofore subsidiary, third party or hereinafter duly adopted Affiliate designated by the Company, at any time within ten (ii10) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Business Days after the date of the initial Subsequent Financing receipt by the Company of the ROFR Notice, shall have the right and option to purchase any Stock covered by the ROFR Notice with at the Person minimum price at which the Stockholder proposes to Transfer such Stock to any ROFR Transferee and otherwise on the same terms and conditions of the Proposed Sale (or, if the Proposed Sale includes any consideration other than cash, then, at the sole option of such purchaser, at the equivalent all cash price, determined in good faith by the Company taking into account the value of the property), by delivering a certified bank check or checks in the appropriate amount (or an Affiliate by wire transfer of immediately available funds, if the Selling Stockholder provides wire transfer instructions) and any such non-cash consideration to be paid to the Selling Stockholder at the principal office of the Company against delivery of certificates or other instruments representing the Stock so purchased, appropriately endorsed by the Selling Stockholder. If at the end of the ten (10) Business Day period, the Company has not exercised the right to purchase all of the Stock covered by the ROFR Notice in the manner set forth above, the Selling Stockholder may, during the succeeding 30-day period, sell not less than all of the Stock covered by the Proposed Sale to the ROFR Transferee in the Proposed Sale on terms no less favorable to the Selling Stockholder than those contained in the ROFR Notice. Promptly after such sale, the Selling Stockholder shall notify the Company of the consummation thereof and shall furnish such evidence of the completion and time of completion of such Person) identified sale and of the terms thereof as may reasonably be requested by the Company. If, at the end of such 30 day period, the Selling Stockholder has not completed the sale of such Stock as aforesaid, all of the restrictions on sale, Transfer or assignment contained in the Subsequent Financing Noticethis Agreement shall again be in effect with respect to such Stock.
Appears in 2 contracts
Sources: Stockholder Agreement (Laureate Education, Inc.), Stockholder Agreement (Laureate Education, Inc.)
Right of First Refusal. The (a) From the date hereof until the one year anniversary of the Closing Date (plus one additional day for each Trading Day following the Effective Date of any Registration Statement during which either (1) the Registration Statement is not effective or (2) the prospectus forming a portion of the Registration Statement is not available for the resale of all Registrable Securities) (the “Trigger Date”), the Company shall will not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other dispositiondisposition of) any of its equity or equity-equity equivalent securities, including, without limitation, any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or Common Stock Equivalents, or if the Company shall receive an offer regarding the purchase of the Company’s securities and desires to offer securities consistent with or those otherwise in connection with or in furtherance of such offer (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”) unless the Company shall have first complied with this Section 4.11. If the Company desires to engage in a Subsequent Placement it shall deliver to each of the Investor a written notice requesting their written approval to receive nonpublic information regarding the Company. The Investor shall have ten (10) days to deliver to the Company such approval. Any Investor failing to deliver timely to the Company such written approval, or who shall have delivered to the Company a written notice withholding such approval, shall be deemed to have waived its Affiliates (as defined rights under this Section 4.11 with regard to such Subsequent Placement. The Investor who, in Rule 405 under the Securities Act) in any transaction that is intended response to be exempt such request from the registration requirements Company, shall have delivered timely to the Company a written approval to receive nonpublic information regarding the Company (collectively, the “Responding Investor” and each a “Responding Investor”), shall receive a written notice that the Company desires to engage in a Subsequent Placement specifying the general terms of the Securities Act offering the Company desires to make (a "Subsequent Financing"including, without limitation, all information relating to price, structure and amount of such offering, but not including the identity of any potential investor therein) and for a period of 180 days at least twenty (20) Business Days after the Effective Date, except giving of such notice the Company agrees to negotiate in good faith with the Responding Investor the terms of a sale of the Company’s securities to the Responding Investor.
(ib) In the granting event that a Subsequent Placement contemplated in the last sentence of options or warrants Section 4.11(a) shall not have closed by the 30th Business Day following the delivery to employees, officers and directorsthe Responding Investor of the written notice for such Subsequent Placement, and the issuance of shares upon exercise of options grantedin any event prior to such Subsequent Placement, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers deliver to the Responding Investor a written notice (the "Subsequent Financing “Offer Notice"”) of its intention to effect such any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent FinancingPlacement, which Subsequent Financing Offer Notice shall (v) identify and describe in reasonable detail the proposed Offered Securities, (x) include the final form of documents and agreements governing the Subsequent Placement, (y) specify the price and other terms of such Subsequent Financingupon which the Offered Securities are to be issued, sold or exchanged, and the number or amount of proceeds intended the Offered Securities to be raised thereunderissued, sold or exchanged, and (z) offer to issue and sell to or exchange with such Investor all of the Person Offered Securities, allocated among such Responding Investor (a) based on such Responding Investor’s pro rata portion of the total Investment Amount hereunder attributable to such Responding Investor (the “Basic Amount”), and (b) with whom respect to each of the Responding Investor that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Responding Investor as such Subsequent Financing Responding Investor shall indicate it will purchase or acquire should the other Responding Investor subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) repeated until the Responding Investor shall not have notified an opportunity to subscribe for any remaining Undersubscription Amount.
(c) To accept an Offer, in whole or in part, such Responding Investor must deliver a written notice to the Company by 5:00 p.m. (Salt Lake City time) on prior to the end of the fifth (5th) Trading Business Day after its such Responding Investor’s receipt of the Subsequent Financing Offer Notice (the “Offer Period”), setting forth the portion of such Responding Investor’s Basic Amount that such Responding Investor elects to purchase and, if such Responding Investor shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Responding Investor elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Responding Investor are less than the total of all of the Basic Amounts, then each Responding Investor who has set forth an Undersubscription Amount in its willingness Notice of Acceptance shall be entitled to enter into or otherwise provide purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (or the “Available Undersubscription Amount”), each Responding Investor who has subscribed for any Undersubscription Amount shall be entitled to cause its designee purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Investor bears to provide)the total Basic Amounts of all Responding Investor that have subscribed for Undersubscription Amounts, subject to completion rounding by the Company to the extent its deems reasonably necessary.
(d) The Company shall have sixty (60) Business Days from the expiration of mutually acceptable documentationthe Offer Period above to (i) offer, financing issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Responding Investor (the “Refused Securities”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company on substantially the terms than those set forth in the Offer Notice and (ii) to publicly announce (a) the execution of such Subsequent Financing NoticePlacement Agreement (as defined below), and (b) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the Commission on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto. If no disclosure has been made by the Company by the end of the sixty (60) Business Day period referred to in this subsection (d), the Subsequent Placement shall be deemed to have been abandoned and the Responding Investor shall fail no longer be deemed to notify be in possession of any non-public information with respect to the Company.
(e) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in this Section 4.11), then each Responding Investor may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its intention Notice of Acceptance to enter into an amount that shall be not less than the number or amount of the Offered Securities that such negotiations within Responding Investor elected to purchase pursuant to Section 4.11(c) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Investor pursuant to Section 4.11(c) above prior to such time periodreduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Responding Investor so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may effect not issue, sell or exchange more than the Subsequent Financing substantially reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Responding Investor in accordance with Section 4.11(b) above.
(f) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Responding Investor shall acquire from the Company, and the Company shall issue to the Responding Investor, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 4.11(e) above if the Responding Investor have so elected, upon the terms and conditions specified in the Offer. The purchase by the Responding Investor of any Offered Securities is subject in all cases to the Persons preparation, execution and delivery by the Company and the Responding Investor of a purchase agreement relating to such Offered Securities substantially the same in form and substance as the agreement disclosed above in Section 4.11(b)(x) and otherwise reasonably satisfactory to Responding Investor’s counsel (such agreement, the “Subsequent Placement Agreement”).
(g) Any Offered Securities not acquired by the Responding Investor or Affiliates of such Personsother persons in accordance with Section 4.11(f) set forth above may not be issued, sold or exchanged until they are again offered to the Investor under the procedures specified in this Agreement.
(h) In exchange for the Subsequent Financing Notice; providedCompany’s willingness to agree to these procedures, each Responding Investor hereby irrevocably agrees that it will hold in strict confidence any and all Offer Notices, the information contained therein, and the fact that the Company shall provide is contemplating a Subsequent Placement, until such time as the Investor with a second Subsequent Financing NoticeCompany is obligated to make the disclosures required by Section 4.11(d), and or unless it notifies the Investor shall again have the right of first refusal set forth above Company in writing that it no longer desires to receive Offer Notices.
(i) The rights contained in this Section 6.13 (a), if the Subsequent Financing subject 4.11 shall not apply to the initial Subsequent Financing Notice shall issuance and sale by the Company of shares of Common Stock or Common Stock Equivalents issued as consideration for the acquisition of another company or business in which the shareholders of the Company do not have an ownership interest, and where the primary purpose is not to raise capital for the Company or Subsidiary, which acquisition has been consummated for any reason on approved by the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date Board of Directors of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeCompany.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Qhy Group), Securities Purchase Agreement (Qhy Group)
Right of First Refusal. The Company shall not
(a) If at any time a Stockholder (such Stockholder, directly an “Offering Stockholder”) receives a bona fide offer from any Third Party Purchaser to purchase all or indirectly, without the prior written consent any portion of the InvestorCommon Stock (the “Offered Shares”) owned by the Offering Stockholder and the Offering Stockholder desires to Transfer the Offered Shares (other than Transfers that are permitted by Section 3.01(b) or Transfers made pursuant to Section 3.03), offerthen the Offering Stockholder must first make an offering of the Offered Shares to each other Stockholder (each such Stockholder, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Acta “ROFR Rightholder”) in any transaction that is intended to be exempt accordance with the provisions of this Section 3.02.
(b) The Offering Stockholder shall, within five (5) Business Days of receipt of the offer from the registration requirements of Third Party Purchaser, give written notice (the Securities Act (“Offering Stockholder Notice”) to the Company and the ROFR Rightholders stating that it has received a "Subsequent Financing") for bona fide offer from a period of 180 days after the Effective Date, except Third Party Purchaser and specifying:
(i) the granting number of options or warrants Offered Shares to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted be Transferred by the Company, Offering Stockholder;
(ii) shares issued upon exercise the identity of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, the Third Party Purchaser;
(iii) Put Sharesthe per share purchase price and the other material terms and conditions of the Transfer, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof; and
(iv) shares issued in connection with the capitalization or creation proposed date, time and location of a joint venture with a strategic partner (a Person whose business is primarily that the closing of investing and selling of securities the Transfer, which shall not be less than sixty (60) Business Days from the date of the Offering Stockholder Notice. The Offering Stockholder Notice shall constitute the Offering Stockholder’s offer to Transfer the Offered Shares to the ROFR Rightholders, which offer shall be irrevocable until the end of the ROFR Notice Period.
(c) By delivering the Offering Stockholder Notice, the Offering Stockholder represents and warrants to the Company and to each ROFR Rightholder that: (i) the Offering Stockholder has full right, title and interest in and to the Offered Shares; (ii) the Offering Stockholder has all the necessary power and authority and has taken all necessary action to Transfer such Offered Shares as contemplated by this Section 3.02; and (iii) the Offered Shares are free and clear of any and all Liens other than those arising as a result of or under the terms of this Agreement.
(d) Upon receipt of the Offering Stockholder Notice, each ROFR Rightholder shall have ten (10) Business Days (the “ROFR Notice Period”) to elect to purchase all (and not less than all) of the Offered Shares by delivering a written notice (a “ROFR Notice”) to the Offering Stockholder and the Company stating that it offers to purchase such Offered Shares on the terms specified in the Offering Stockholder Notice. Any ROFR Notice shall be binding upon delivery and irrevocable by the applicable ROFR Rightholder. If more than one ROFR Rightholder delivers a ROFR Notice, each such ROFR Rightholder (the “Purchasing Stockholder”) shall be allocated the number of shares equal to the product of (x) the total number of Offered Shares and (y) a fraction determined by dividing (A) the number of shares of Common Stock owned by such Purchasing Stockholder as of the date of the Offering Stockholder Notice, by (B) the total number of shares of Common Stock owned by all of the Purchasing Stockholders as of such date.
(e) Each ROFR Rightholder that does not deliver a ROFR Notice during the ROFR Notice Period shall be deemed to have waived all of such ROFR Rightholder’s rights to purchase the Offered Shares under this Section 3.02.
(f) If no Stockholder delivers a strategic partnerROFR Notice in accordance with Section 3.02(d), the Offering Stockholder may, during the sixty (v60) shares issued Business Day period immediately following the expiration of the ROFR Notice Period, which period may be extended for a reasonable time not to pay part exceed ninety (90) Business Days to the extent reasonably necessary to obtain any Government Approvals (the “Waived ROFR Transfer Period”) and subject to the provisions of Section 3.04, Transfer all of the Offered Shares to the Third Party Purchaser on terms and conditions no more favorable to the Third Party Purchaser than those set forth in the Offering Stockholder Notice. If the Offering Stockholder does not Transfer the Offered Shares within such period or, if such Transfer is not consummated within the Waived ROFR Transfer Period, the rights provided hereunder shall be deemed to be revived and the Offered Shares shall not be Transferred to the Third Party Purchaser unless the Offering Stockholder sends a new Offering Stockholder Notice in accordance with, and otherwise complies with, this Section 3.02.
(g) Each Stockholder shall take all actions as may be reasonably necessary to consummate the Transfer contemplated by this Section 3.02, including entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.
(h) At the closing of any Transfer pursuant to this Section 3.02, the Offering Stockholder shall deliver to the Purchasing Stockholders the certificate or certificates representing the Offered Shares to be sold (if any), accompanied by stock powers and all necessary stock transfer taxes paid and stamps affixed, if necessary, against receipt of the purchase price for the acquisition therefor from such Purchasing Stockholders by the Company certified or official bank check or by wire transfer of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeimmediately available funds.
Appears in 2 contracts
Sources: Stockholders Agreement, Flash Cf Preferred Stock Subscription Agreement
Right of First Refusal. The Company hereby covenants as follows:
(a) The Company shall notnot issue any debt or equity securities for cash in private capital raising transactions (a "Future Offering") within the three-year period after the date of the Closing ("Closing Date") without delivering to the Investors prior written notice of its intent to conduct a Future Offering (a "Future Offering Notice") setting forth the material terms of the proposed Future Offering, directly including copies of all relevant documents and agreements. For a period of twenty days, commencing on the date of receipt of such Future Offering Notice (the "Offer Period"), each Investor shall have the right irrevocably to commit, by written notice to the Company, to purchase the Investor's Portion (as that term is defined below) of the securities being offered in the Future Offering on the terms contained in the Future Offering Notice. If, during the Offer Period, the Investor fails irrevocably to commit to purchase the Investor's Portion of the securities that are the subject of the Future Offering Notice, the Company shall be permitted to offer and sell any such securities, on terms generally no less favorable to the Company than are set forth in the Future Offering Notice, to any third party during a period of 90 days following the termination of the Offer Period, after which 90-day period the terms of this Section 6 shall again apply.
(b) The provision of paragraph (a) shall not apply to (i) any transaction involving the Company's commercial banking arrangements, (ii) the issuance of securities in connection with a merger, consolidation or indirectlysale of assets, or in connection with a joint venture or an acquisition or disposition of a business, a product or a license by the Company, or (iii) to the issuance of securities to any employee, officer, director or consultant.
(c) The amount of securities that an Investor is entitled to purchase in a Future Offering (the "Investor's Portion") shall be the number obtained by multiplying the aggregate amount of securities being offered in the Future Offering by a fraction, the numerator of which is the number of Units purchased by the Investor pursuant to this Agreement (whether or not the Investor continues to own the Unit Shares or the Warrants) and the denominator of which is the number of Units purchased by all Investors pursuant to this Agreement.
(d) The rights of each Investor under this Section 6 shall not be transferable or assignable by the Investor without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Alpha 1 Biomedicals Inc), Unit Purchase Agreement (Samet Roger H)
Right of First Refusal. The (a) Liberty, as assignee of TCI Ventures Group, LLC ("Ventures Group"), hereby waives its right of first refusal under that certain letter agreement, dated August 1, 1998 (the "Letter Agreement"), among MBO-IV, IP, Ventures Group and the other parties thereto, with respect to the sale of shares of Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option Common Stock pursuant to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined and in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except accordance with (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the CompanyCompany Purchase Agreement, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3the Rule 144 Sale Arrangements, (iii) Put Shares, any Block Sale Transaction taking place prior to the conclusion of the Lock-Up Period and (iv) any Market Sale (as defined below) consummated after the Lock-Up Period at a price per share (before selling expenses) of $28.00 or more.
(b) Each of MBO-IV and IP hereby acknowledges and agrees that, except as provided in subsection 8(a) above, Liberty's right of first refusal under the Letter Agreement shall continue in effect with respect to all shares issued of Company Common Stock owned by MBO-IV or IP following the Closing in connection accordance with the capitalization or creation of a joint venture with a strategic partner terms thereof (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partnerincluding Section 3 thereof), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, however, that the parties agree that with respect to any open market sale of Company shall provide Common Stock proposed to be made by FLC after the Investor with Closing at a second Subsequent Financing Noticeprice per share (before selling expenses) of less than $28.00, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject pursuant to the initial Subsequent Financing Letter Agreement (if applicable) shall be effected as follows:
(x) Each of MBO-IV and IP shall notify Liberty of its intention to sell in a broker transaction on the New York Stock Exchange or to a market-maker (a "Market Sale"); such notice (a "Sale Notice") shall specify the number of shares of Company Common Stock proposed to be sold and shall specify the price at which MBO-IV or IP is willing to sell; such Sale Notice shall not have been consummated for any reason on be in writing and shall be delivered to Liberty via telecopier and shall constitute an offer by FLC to sell the terms number of shares specified therein at the price specified therein;
(y) If Liberty delivers written notice (by telecopier) to MBO-IV or IP (as applicable) within 24 hours of its receipt of the Sale Notice accepting the offer set forth in the Sale Notice, Liberty shall be obligated to thereafter purchase the shares of Company Common Stock specified in the Sale Notice at the price specified therein, all in accordance with the terms and procedures set forth in the Letter Agreement, except that the closing thereunder shall take place on a mutually agreed date not later than the sixth business day following Liberty's receipt of the Sale Notice; and
(z) If Liberty does not deliver such Subsequent Financing notice within the time specified, MBO-IV and IP shall be permitted to sell up to the aggregate number of shares specified in the Sale Notice within sixty (60) Trading Days after in open market transactions at a price per share of Company Common Stock not less than that specified in the Sale Notice during the period ending at the close of business on the fifth trading day following the date of delivery of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Sale Notice.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Liberty Media Corp /De/), Stock Purchase Agreement (Forstmann Little & Co Sub Debt & Equ MGMT Byout Part Iv/Inst)
Right of First Refusal. The Company shall not(a) Except as otherwise provided in paragraph 10.02 hereof, directly the right of Franchisee and Equity Holders to Transfer any equity interest in Franchisee or indirectlyany direct or indirect interest in this Agreement, without the prior written consent Franchised Business or the economic benefits derived therefrom, or in the assets of the InvestorFranchised Business if the Transfer of such assets is made in connection with a Transfer of a substantial portion of such assets, offeras permitted in paragraph 10.02 hereof, sellshall be subject to Franchisor’s right of first refusal with respect thereto if such Transfer (i) is in excess of twenty-five percent (25%) of such equity interest in any single transaction or (ii) effects a change in Control of Franchisee, grant unless the transferee is one of the Designated Equity Holders (identified in part 7 of Exhibit D hereto). Franchisor’s said right of first refusal may be exercised in the following manner:
(b) Franchisee or such Equity Holder shall serve upon Franchisor a written notice setting forth (i) all of the terms and conditions of any option offer or agreement relating to purchasea proposed Transfer by such person, or otherwise dispose all terms and conditions of any proposed Transfer arising out of, or resulting from, any judicial proceeding, arbitration or other quasi-judicial proceeding, and (ii) all available information concerning the proposed transferee of such person.
(c) Within thirty business days after Franchisor1 S receipt of such notice (or announce any offerif it shall request additional information, salewithin thirty business days after receipt of such additional information), grant Franchisor shall notify the proposed transferor of one of the following:
(i) Franchisor shall exercise its right of first refusal as provided herein; or
(ii) Franchisor grants its consent to such Transfer to the proposed transferee as stated in the notice; or
(iii) Franchisor shall not exercise its right of first refusal and does not consent to such Transfer.
(d) If Franchisor shall elect to exercise its right of first refusal, it shall purchase the equity interests or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended assets proposed to be exempt from Transferred on the registration requirements same terms and conditions as set forth in such offer or agreement, or in the case of a proposed Transfer pursuant to a judicial proceeding, arbitration or quasi-judicial proceeding, on the Securities Act same terms and conditions as set forth in the written notice set forth in subparagraph (a "Subsequent Financing"b) above. If Franchisor shall elect not to exercise its right of first refusal and shall consent to such Transfer, the proposed transferor shall for a period of 180 90 days after the Effective Date, except (i) the granting of options or warrants be free to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued so Transfer to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially transferee upon the terms and to the Persons (conditions specified in said notice. If, however, said terms shall be materially changed, or Affiliates of such Persons) set forth in the Subsequent Financing Notice; providedif said 90-day period shall have expired, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor Franchisor shall again have the such right of first refusal set forth above with respect thereto and the proposed transferor shall again be required to comply with paragraph 10.03(a) above.
(e) Franchisor’s right of first refusal as contained herein shall in this Section 6.13 (a), if the Subsequent Financing subject no way modify or diminish Franchisor’s right to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticewithhold its consent to Transfer under paragraph 10.02 hereof.
Appears in 2 contracts
Sources: Franchise Agreement, Franchise Agreement (WCI Communities, Inc.)
Right of First Refusal. The For a period of 18 months from the issuance date of any Debenture if the Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant proposes to offer and sell any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates New Securities (as defined below) subsequent to the date of this Agreement in Rule 405 under the Securities Act) in any a transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual financing the operations or group business of individuals) and (vi) shares issued in a bona fide public offering by the Company of and its (and not of any of its stockholders') securitiesSubsidiaries, unless (A) the Company delivers shall provide to the Investor a each Purchaser who holds any Debenture written notice (the "Subsequent Financing “Offering Notice"”) stating the number of its intention New Securities proposed to effect such Subsequent Financingbe offered and sold, which Subsequent Financing Notice shall describe in reasonable detail the proposed total purchase price, the terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affectedpayment, and attached any other material terms of the offer (to which shall be the extent then known). For a term sheet or similar document relating thereto and period of five (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th5) Trading Day Days after its receipt of the Subsequent Financing Offering Notice of its willingness to enter into or otherwise provide (or to cause its designee to providethe “Respond Deadline”), subject to completion of mutually acceptable documentationsuch Purchaser(s) may, financing by written notice delivered to the Company within such time period, accept such offer and elect to purchase all or any portion of such New Securities to the extent of the Maximum Amount on substantially the terms set forth in the Subsequent Financing NoticeOffering Notice and similar terms as other investors that purchase New Securities in such offering, pro rata based on the amount of Debentures purchased by such Purchaser. If any such Purchaser so elects to participate, the Investor Purchase shall fail to notify execute and deliver the same agreements and instruments as other purchasers of the New Securities. For purposes of this Section, “New Securities” shall mean any equity or convertible debt securities of the Company issued in a transaction primarily for purposes of its intention to enter into such negotiations within such time period, financing the operations or business of the Company may effect and its Subsidiaries, provided, however, that “New Securities” shall not include any securities issued in Exempt Issuances. For the Subsequent Financing substantially upon purpose of this Section, “Maximum Amount” shall mean the terms and product of (x) the aggregate Subscription Amounts hereunder, minus (y) the aggregate Subscription Amounts of the Debentures whose Purchaser(s) have refused or have not responded to the Persons (Company on or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject prior to the initial Subsequent Financing Notice shall not have been consummated for any reason on Respond Deadline with respect to the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date offering of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeNew Securities.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Codesmart Holdings, Inc.), Securities Purchase Agreement (Codesmart Holdings, Inc.)
Right of First Refusal. The Company Subject to applicable securities laws and to the terms and conditions specified in this Section 3.3 and the other restrictions set forth in this Agreement, each Stockholder, on behalf of itself and its controlled Affiliates, hereby grants to each other Stockholder a right of first refusal as set forth below (the “Right of First Refusal”) to purchase shares of Preferred Stock or Common Stock; provided, that, notwithstanding anything herein to the contrary, the Right of First Refusal shall notnot be granted in respect of Cash-settled Exchangeables and Equity Linked Financings.
(a) From and after the Closing Date, no Stockholder or its controlled Affiliate shall, directly or indirectlyindirectly through Transferring ownership interest of a controlled Affiliate thereof, without Transfer any shares of Preferred Stock or Common Stock to another Person (other than Excluded Transfers and any Marketed Transfers) (each, a “Subject Transaction”) except in accordance with the prior following provisions:
(i) If, at any time, a Stockholder (the “Transferring Stockholder”) receives a written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of offer (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt including from the registration requirements of the Securities Act (a "Subsequent Financing"another Stockholder) for a period Subject Transaction that the Transferring Stockholder desires to accept, the Transferring Stockholder shall, within three (3) business days following receipt of 180 days after the Effective Datesuch offer, except (i) the granting of options or warrants to employeesdeliver, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture together with a strategic partner (a Person whose business is primarily that copy of investing and selling of securities shall not be deemed a strategic partner)such offer, (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing “Transfer Notice"”) to each of the other Stockholders (whether or not a party to the proposed Transfer) (together with each such Stockholder’s Permitted Transferees, a “Non-Transferring Stockholder”) stating (A) its bona fide intention to effect Transfer such Subsequent Financingshares of Preferred Stock and/or Common Stock pursuant to such Subject Transaction, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor identity of all proposed parties to such Subject Transaction, (C) the number of such shares of Preferred Stock or Common Stock to be Transferred pursuant to such Subject Transaction (the “ROFR Amount”), and (D) the proposed purchase price, which must be payable in cash, and the terms and conditions of the written offer, upon which the Transferring Stockholder proposes to Transfer such shares of Preferred Stock and/or Common Stock (including the proposed date of the closing of the Subject Transaction, which shall not have notified in no event be less than forty-five (45) business days from the Company by 5:00 p.m. date of the Transfer Notice) (Salt Lake City clauses (B) through (D), collectively, the “Minimum Terms”). The Transfer Notice shall constitute the Transferring Stockholder’s irrevocable, binding offer to Transfer such shares of Preferred Stock or Common Stock to the Non-Transferring Stockholders (as between the Non-Transferring Stockholders, pro rata based on their relative beneficial ownership of the Voting Stock at such time) pursuant to the Minimum Terms.
(ii) Within thirty-five (35) business days after receipt of the Transfer Notice, each of the Non-Transferring Stockholders may elect to purchase any portion or all of its pro rata portion of the ROFR Amount at the price and on the fifth terms and conditions specified in the Transfer Notice. In the event that either of the Non-Transferring Stockholders does not elect to purchase its entire pro rata portion of the ROFR Amount within thirty-five (5th35) Trading Day business days after the receipt of the Transfer Notice, the Transferring Stockholder shall notify the other Non-Transferring Stockholder of such election, and such other Non-Transferring Stockholder shall have ten (10) business days after its receipt of such notice to purchase the Subsequent Financing Notice remaining amount of its willingness the ROFR Amount in respect of which such Non-Transferring Stockholder’s rights were not exercised pursuant to enter this Section 3.3(a). At the end of such ten (10) business day period, if none of the Non-Transferring Stockholders have elected to purchase any of the ROFR Amount or all the Non-Transferring Stockholders, collectively, have not elected to purchase, in the aggregate, the entire ROFR Amount, the Non-Transferring Stockholders will be deemed to have declined to exercise their rights under this Section 3.3(a)(ii) with respect to the balance of the ROFR Amount and the Transferring Stockholder shall have forty-five (45) business days (which forty-five (45) business day period will be extended, if the Transferring Stockholder has entered into or otherwise provide (or a definitive agreement in respect of such Transfer prior to cause its designee to provide), such time and the Transfer is subject to completion of mutually acceptable documentationregulatory approval, financing until four (4) business days after such approval or approvals have been received, but in no event by more than an additional forty-five (45) business days) thereafter to sell the entire ROFR Amount, at a price in cash not lower, and upon other terms and conditions that are not more favorable to the Company on substantially purchasers thereof in any material respect, than the price and the terms set forth and conditions specified in the Subsequent Financing Transfer Notice. If the Investor Transferring Stockholder has not consummated the Transfer of all or a portion of ROFR Amount within such forty-five (45) business days (or such extended period contemplated by the preceding sentence), the Transferring Stockholder shall fail not thereafter engage in a Subject Transaction and Transfer any shares of Preferred Stock or Common Stock without first offering such securities to notify each of the Company Non-Transferring Stockholders in the manner provided in this Section 3.3(a).
(b) From and after the Closing Date, no Stockholder or its controlled Affiliate shall, directly or indirectly through Transferring ownership interest of a controlled Affiliate thereof, Transfer any shares of Preferred Stock or Common Stock to another Person through a Marketed Transfer (other than an Excluded Transfer) except in accordance with the following provisions:
(i) If a Stockholder intends to execute a Marketed Transfer with respect to shares of Preferred Stock or Common Stock, at least ten (10) business days prior to the proposed initiation date of the Marketed Transfer, such Stockholder shall provide a written notice to the other Stockholders, which notice shall set forth its good faith estimate of the number of shares of Preferred Stock or Common Stock proposed to be Transferred and the proposed purchase price, which must be payable in cash.
(ii) At least five (5) business days prior to the initiation of the Marketed Transfer, the Stockholder shall provide a written notice (a “Marketing Notice”) to each of the other Stockholders stating (i) its bona fide intention to Transfer such shares of Preferred Stock and/or Common Stock pursuant to such Marketed Transfer, (ii) the identity of all proposed parties (including any underwriters) to such Marketed Transfer, to the extent known, (iii) the number of such shares of Preferred Stock or Common Stock to be Transferred pursuant to such Marketed Transfer (the “Marketed Amount”), and (iv) the proposed purchase price, which must be payable in cash, and the other terms and conditions of the Marketed Transfer (clauses (ii) through (iv), collectively, the “Marketing Terms”). The Marketing Notice shall constitute the Transferring Stockholder’s irrevocable, binding offer to Transfer such shares of Preferred Stock or Common Stock to the other Stockholders (as between the other Stockholders, pro rata based on their relative beneficial ownership of the Voting Stock at such time) pursuant to the Marketing Terms.
(iii) Within five (5) business days after receipt of the Marketing Notice, each of the other Stockholders may elect to purchase any portion or all of its intention pro rata portion of the Marketed Amount at the price and on the terms and conditions specified in the Marketing Notice. At the end of such five (5) business day period, if none of the other Stockholders have elected to enter into purchase any of the Marketed Amount or all the Non-Transferring Stockholders, collectively, have not elected to purchase, in the aggregate, the entire ROFR Amount, the other Stockholders will be deemed to have declined to exercise their rights under this Section 3.3(b)(iii) with respect to the balance of the Marketed Amount and the Transferring Stockholder shall have fifteen (15) business days thereafter to sell through a Marketed Transfer all or any portion of the Marketed Amount in respect of which each of the other Stockholders’ rights were not exercised pursuant to this Section 3.3(b), at a price in cash not lower than 95% of the price set forth in its Marketing Notice, and upon other terms and conditions that are not more favorable to the purchasers thereof in any material respect than the terms and conditions specified in the Marketing Notice. If the Stockholder initiating the Marketed Transfer has not consummated the Marketed Transfer of such negotiations Marketed Amount within such time fifteen (15) business days, such Stockholder shall not thereafter Transfer any shares of Preferred Stock through a Marketed Transfer without first offering such securities to each of the other Stockholders in the manner provided in this Section 3.3(b).
(c) The closing of the purchase of any ROFR Amount or Marketed Amount by the Stockholder exercising its Right of First Refusal shall occur ten (10) business days after the date on which such Stockholder shall have elected to purchase such ROFR Amount or Marketed Amount; provided that, in the event all required regulatory approvals (including, if required, the expiration or other termination of the waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended) have not been received prior to the end of such ten (10) business day period, the Company may effect closing date shall be extended until two (2) business days after all such required approvals have been received. At the Subsequent Financing substantially upon closing, the terms and Stockholder Transferring the ROFR Amount or Marketed Amount shall deliver documents conveying title to such ROFR Amount or Marketed Amount to the Persons purchasing Stockholder(s), free and clear of any liens or encumbrances (except for restrictions arising under any applicable securities laws or Affiliates this Agreement), and any other instruments or instructions required to effectuate such Transfer and the purchase price shall be paid by wire transfer of such Personsimmediately available funds, to an account designated by the Stockholder Transferring the ROFR Amount or Marketed Amount at least three (3) set forth in business days prior to the Subsequent Financing Noticeclosing date.
(d) For the avoidance of doubt, this Section 3.3 may only be enforced, amended or waived by, and shall only inure to the benefit of, the Stockholders and their respective successors and permitted assigns, and the Company shall have no right to enforce, and the consent of the Company is not required to amend or waive, the provisions of this Section 3.3; provided, however, that the Company Stockholders shall provide the Investor Company with a second Subsequent Financing Notice, and the Investor shall again have the right prior notice of first refusal set forth above any such amendment or waiver.
(e) Notwithstanding anything in this Section 6.13 (a), if the Subsequent Financing subject Agreement to the initial Subsequent Financing Notice shall not have been consummated for contrary that limits the ability of a Person to assign or transfer its rights hereunder, a Stockholder that exercises its Right of First Refusal pursuant to this Section 3.3 may designate any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of its Permitted Transferees to purchase all or part of the initial Subsequent Financing Notice with the Person (or an Affiliate shares of such Person) identified in Preferred Stock and/or Common Stock; provided that such Stockholder shall remain obligated to consummate the Subsequent Financing Noticepurchase if such designees fail to do so.
Appears in 2 contracts
Sources: Stockholders Agreement (Comscore, Inc.), Stockholders Agreement (Comscore, Inc.)
Right of First Refusal. The During the two (2) year period following the ------------------------ first funding tranche of $100,000, the Company shall not, directly or indirectly, without the prior written consent of the InvestorPurchasers in this Offering, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent FinancingSUBSEQUENT FINANCING") for a period of 180 days one year after the Effective Date, except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.33(c), (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (viv) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ), and (viv) shares issued in a bona fide public offering by the Company of its securities, and (and not vi) shares that may be issued as a result of any of outstanding rights offering between the Company and its current stockholders') securities, unless (A) the Company delivers to the Investor Purchaser a ------ written notice (the "Subsequent Financing NoticeSUBSEQUENT FINANCING NOTICE") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor Purchaser shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day business day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. The Purchaser shall also have the option of switching the terms of this Offering to the terms of any new financing during this period. If the Investor Purchaser shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that PROVIDED THAT the Company shall provide the Investor Purchaser with a second Subsequent Financing Notice, and the Investor Purchaser shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty thirty (6030) Trading Days business days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Purchaser in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person except as disclosed on Schedule 3(c).
Appears in 2 contracts
Sources: Subscription Agreement (Diversified Product Inspections Inc), Subscription Agreement (Diversified Product Inspections Inc)
Right of First Refusal. The In the event that the Company proposes to authorize or issue any Equity Security and/or Debt Security, Investor shall not, directly or indirectly, without the prior written consent have a right of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option first refusal to purchase any or other disposition) any all of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under such Equity Security and/or Debt Security, through the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the Notes and the exercise of any or all of the Bridge Warrants for such securities; provided, however, that in the event of automatic conversion of Bridge Funding pursuant to Section 2.7(a) hereof, Investor's right of first refusal shall relate solely to the purchase of Convertible Preferred Stock. Any such conversion of Notes by Investor would be at the conversion price provided in Section 2.7(d) and any such exercise of the Bridge Warrants would be at the exercise price provided in the applicable Bridge Warrant, in each case irrespective of the purchase price proposed to be paid by any other investor for such securities. This right of first refusal shall apply at each closing of the acquisition by issuance of any such Equity Security and/or Debt Security, so long as any Notes or Bridge Warrants are outstanding. Such right of first refusal shall apply regardless of whether or not Investor leads or otherwise participates in any such financing. Prior to issuing any Equity Security or Debt Security, the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the provide Investor a with at least sixty days advance written notice (the "Subsequent Financing Notice") of its intention to effect issue such Subsequent Financingsecurities, which Subsequent Financing Notice notice shall describe in reasonable sufficient detail (to the extent then known) the securities proposed terms of such Subsequent Financingto be issued, the amount of proceeds intended parties to whom the Company proposes to issue such securities and the price at which the securities are proposed to be raised thereunder, issued (collectively the Person "FINANCING TERMS"). The Company shall update Investor with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing respect to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and Terms to the Persons (extent that the Financing Terms change or Affiliates of such Persons) set forth in become known to the Subsequent Company. Once the Financing Notice; providedTerms are fixed, that the Company shall provide the Investor with a second Subsequent final notice ("FINAL NOTICE") containing all Financing Notice, Terms and the Investor shall again have the a period of thirty days to exercise its right of first refusal set forth above in following delivery of such Final Notice to Investor by the Company. All rights of first refusal provided by this Section 6.13 (a)2.7(f) are in addition to, if the Subsequent Financing subject and shall in no way be deemed to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth limit, offset or supersede, Investor's right of first refusal contained in such Subsequent Financing Notice within sixty (60Section 3.4(d) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticethis Agreement.
Appears in 2 contracts
Sources: Recapitalization Agreement (Northwest Biotherapeutics Inc), Recapitalization Agreement (Northwest Biotherapeutics Inc)
Right of First Refusal. (a) The Company shall not, directly or indirectly, without the prior written consent of the InvestorPreferred Stock Investors, as that term is defined below, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or those any instrument that permits the holder thereof to acquire shares of its Affiliates (as defined in Rule 405 under Common Stock at any time over the Securities Act) in any transaction life of the security or investment at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or instrument (a "Subsequent FinancingPlacement") for a period of 180 one hundred eighty (180) days after the Effective Original Issue Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock or options in each case disclosed in Section 4.3Schedule 3.1(c), (iii) Put Sharesshares of Common Stock issued upon conversion of the Shares or shares of the Series F Preferred Stock, as payment of dividends in respect thereof, in accordance with their respective terms, (iv) shares of Common Stock issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares of Common Stock issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares of Common Stock issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the each Preferred Stock Investor a written notice (the "Subsequent Financing Placement Notice") of its intention to effect such Subsequent FinancingPlacement, which Subsequent Financing Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent FinancingPlacement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing Placement shall be affectedaffected (if known to the Company), and attached to which shall be a term sheet or similar document relating thereto and (B) the no Preferred Stock Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth third (5th3rd) Trading Day after its receipt of the Subsequent Financing Placement Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Placement Notice. If the no Preferred Stock Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Placement Notice (if such Persons are set forth in the Subsequent Placement Notice); provided, that the Company shall provide the each Preferred Stock Investor with a second Subsequent Financing Placement Notice, and the Investor Preferred Stock Investors shall again have the right of first refusal set forth above in this Section 6.13 (a)4.8, if the Subsequent Financing Placement subject to the initial Subsequent Financing Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Placement Notice within sixty thirty (6030) Trading Days after the date of the initial Subsequent Financing Placement Notice with the Person (or an Affiliate of such Person) (if any) identified in the Subsequent Financing Placement Notice. If the Preferred Stock Investors shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Preferred Stock Investor shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the total number of the Series F Preferred Stock and the Shares purchased under this Agreement, but the Company shall not be required to accept financing from the Preferred Stock Investors in an amount in excess of the amount set forth in the Subsequent Placement Notice.
(b) Except for Underlying Shares, and other "Registrable Securities," the Company shall not, for a period of not less than 90 Trading Days after the date that the Underlying Securities Registration Statement is declared effective by the Commission, without the prior written consent of the Preferred Stock Investors, (i) issue or sell any of its or any of its Affiliates' equity or equity-equivalent securities pursuant to Regulation S promulgated under the Securities Act, or (ii) register for resale any securities of the Company. Any days that a Preferred Stock Investor is not permitted to sell Underlying Shares under the Underlying Securities Registration Statement shall be added to such 90 Trading Day period for the purposes of (i) and (ii) above.
(c) For purposes of this Section 4.8, "Preferred Stock Investor" shall mean the holder of any then issued and outstanding shares of Series F Preferred Stock or Shares, provided that to the extent of any conflict under this Section 4.8, the holders of the Series F Preferred Stock shall have priority.
Appears in 2 contracts
Sources: Series F Convertible Preferred Stock Purchase Agreement (Fonix Corp), Series F Convertible Preferred Stock Purchase Agreement (Fonix Corp)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option (a) Subject to purchase, or otherwise dispose of subsection (or announce any offer, sale, grant or any option to purchase or other dispositionb) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) Section 4.1 and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time periodSection 4.2 through Section 4.8 hereof, the Company may effect the Subsequent Financing substantially upon the terms and hereby grants to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have each Major Holder the right of first refusal set forth above to purchase such Investor’s pro rata share of New Securities (as defined in this Section 6.13 4.2) that the Company may from time to time propose to sell and issue (athe “Right of First Refusal”). For purposes of the Right of First Refusal, an Investor’s pro rata share (the “Pro Rata Share”) shall be equal to that number or amount of New Securities to be sold minus all New Securities (if any) agreed to be purchased by General Atlantic pursuant to Section 4.1(b) below, multiplied by a fraction, the Subsequent Financing subject numerator of which shall be the number of shares of Common Stock issuable upon the conversion of all Convertible Securities owned by such Investor (and without taking into account any unexercised options or warrants) and the denominator of which shall be the total number of shares of the Company’s Common Stock issuable upon the conversion of all Convertible Securities held by the Investors (including, for the avoidance of doubt, shares held by General Atlantic, in the event that General Atlantic also exercises its rights under Section 4.1(b) below with respect to such offering) deemed to be outstanding (and without taking into account any unexercised options or warrants). Notwithstanding the initial Subsequent Financing Notice foregoing, any Investor may, at the time it accepts the Company’s offer, subscribe to purchase any or all of the New Securities offered (“Oversubscription Securities”) that may be available as a result of the rejection, or partial rejection, of the offer by other Investors; provided, however, that, so long as General Atlantic’s rights under Section 4.1(b) below have not terminated, any allocation of Oversubscription Securities shall not have been consummated for any reason on the terms first be allocated to General Atlantic as set forth in Section 4.1(b) below with any remaining Oversubscription Securities being allocated among those other Investors who so subscribe to purchase Oversubscription Securities. All such Subsequent Financing Notice remaining Oversubscription Securities shall be allocated among those Investors subscribing to purchase them in proportion to the number of shares of Common Stock issuable upon conversion of all Convertible Securities held by each such Investor relative to the number of shares of Common Stock issuable upon conversion of all Convertible Securities held by all Investors subscribing to purchase the remaining Oversubscription Securities.
(b) Notwithstanding subsection (a) of this Section 4.1, prior to the Company’s initial public offering, General Atlantic shall have the right (but not the obligation) to purchase up to fifty percent (50%) of any New Securities until such time as General Atlantic has invested One Hundred Million Dollars ($100,000,000) in aggregate capital in the Company (including its purchase of shares of Series E Preferred Stock and any securities acquired pursuant to Section 2.9 of this Agreement), following which it will have the right to acquire its Pro Rata Share of any offering of New Securities pursuant to subsection (a) of this Section 4.1. Any allocations of New Securities made pursuant to subsection (a) of this Section 4.1 shall be made after taking into account funds elected to be invested by General Atlantic pursuant to this subsection (b). If (i) with respect to the first offering of New Securities with a value in excess of Twenty Million Dollars ($20,000,000) which is subsequently consummated on the offered terms within sixty ninety (6090) Trading Days after the date days in accordance with Section 4.5, General Atlantic does not elect to acquire fifty percent (50%) of the initial Subsequent Financing Notice with New Securities in such offering or (ii) General Atlantic fails to purchase at least Ten Million Dollars ($10,000,000) of Series E Preferred Stock pursuant to the Person Purchase Agreement, the rights of General Atlantic specified in this subsection (b) shall terminate and be of no further force or an Affiliate effect. For the avoidance of such Persondoubt, General Atlantic’s failure to exercise its rights in Section 2.9(b) identified above shall not affect its rights in the Subsequent Financing Noticethis subsection (b).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Sonendo, Inc.), Investors’ Rights Agreement (Sonendo, Inc.)
Right of First Refusal. The Subject to the terms and conditions specified in this Section 5.3, the Company hereby grants to the Purchaser a right of first refusal with respect to future sales by the Company of any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock (collectively, "Stock"). Each time the Company proposes to offer any Stock, the Company shall not, directly or indirectly, without first make an offering to the prior written consent of Purchaser in accordance with the Investor, offer, sell, grant any option to purchase, or otherwise dispose of following provisions:
(or announce any offer, sale, grant or any option to purchase or other dispositiona) any of its equity or equity-equivalent securities or those of its Affiliates the Company shall deliver a notice by certified mail (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent FinancingNotice") for a period of 180 days after to the Effective Date, except Purchaser stating (i) its bona fide intention to offer such Stock, (ii) the granting quantity of options or warrants such Stock to employees, officers and directorsbe offered, and (iii) the issuance of shares price (or reasonable price range) and terms, if any, upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted which it proposes to offer such Stock;
(b) by written notification received by the Company, within 20 calendar days after giving of the Notice, the Purchaser may irrevocably elect to purchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Stock which equals the proportion that the number of shares of Common Stock issued and held (ii) including any shares issued upon exercise of any currently outstanding warrants and issuable upon conversion of any currently Warrant then held) by Purchaser bears to the total number of shares of common stock of the Company then outstanding (assuming full conversion and exercise of all convertible preferred stock in each case disclosed or exercisable securities);
(c) if all Stock which Purchaser is entitled to obtain pursuant to Section 5.3(b) are not elected to be obtained as provided in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner5.3(b), (v) shares issued to pay part or all the Company may, during the 120-day period following the expiration of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (vperiod provided in Section 5.3(b), shall offer the remaining unsubscribed portion of such Stock to any person or persons at a price not include an individual or group of individuals) substantially less than, and (vi) shares issued in a bona fide public offering by the Company of its (and upon terms not of any of its stockholders') securities, unless (A) the Company delivers substantially more favorable to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financingofferee than, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth those specified in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to does not enter into such negotiations an agreement for the sale of the Stock within such time period, or if such agreement is not consummated within 120 days of the Company may effect execution thereof, the Subsequent Financing substantially upon the terms right provided hereunder shall be deemed to be revived and such Stock shall not be offered unless first reoffered to the Persons Purchaser in accordance herewith;
(or Affiliates of such Personsd) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 5.3 shall not be applicable (a), if the Subsequent Financing subject i) to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty issuance or sale of shares of common stock (60or options therefor) Trading Days after the date to employees, officers, directors, advisors or consultants of the initial Subsequent Financing Notice with Company for the Person primary purpose of soliciting or retaining their employment, (or an Affiliate ii) the issuance of such Person) identified in securities pursuant to the Subsequent Financing Notice.conversion or
Appears in 2 contracts
Sources: Securities Purchase Agreement (I2 Technologies Inc), Securities Purchase Agreement (Vialink Co)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers hereby grants to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 to purchase a pro rata portion of Common Stock, preferred stock, debt or notes convertible into Common Stock, or notes sold together with warrants to purchase Common Stock (acollectively, "New Securities"), if which the Subsequent Financing Company may, from time to time, propose to sell and issue in private placements for cash. This right of first refusal shall be subject to the initial Subsequent Financing Notice following provisions:
(a) The right of first refusal granted herein shall not apply to New Securities, (A) issued upon the exercise of the Company's outstanding options or warrants, (B) issued pursuant to the acquisition of another corporation by the Company by merger, purchase of substantially all the assets or other reorganization, (C) issued by the Company in connection with the acquisition of any patent or other rights to technology, including licenses, (D) issued to employees, consultants, officers or directors of the Company pursuant to any stock option plan or stock purchase or stock bonus arrangement approved by the Board of Directors of the Company, (E) issued in connection with a corporate collaboration, joint venture, partnership, or marketing, manufacturing, research or other similar arrangement, or (F) issued pursuant to a public offering by the Company.
(b) In the event the Company proposes to undertake an issuance of New Securities in a private placement, it shall give each Investor written notice of its intention describing the price and other material terms at which the Company proposes to issue the same. Each Investor shall have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty three (603) Trading Days after days from the date of receipt of any such notice to agree to purchase its pro rata portion of such securities for the initial Subsequent Financing Notice price specified in the notice by giving written notice to the Company and stating therein the quantity of securities to be purchased. Any Investor exercising its right of first refusal hereunder shall, unless the Company otherwise consents, be required to purchase its entire pro rata portion if any securities are to be purchased.
(c) In the event, and to the extent, that the Investors fail to exercise the right of first refusal within said three (3) day period, the Company shall have ninety (90) days thereafter to sell or enter into an agreement (pursuant to which the sale of securities covered thereby shall be closed, if at all, within ninety (90) days from the date of said agreement) to sell the securities respecting which the right of first refusal was not exercised, at a price and upon material terms no more favorable to the purchasers thereof than specified in the Company's notice. In the event the Company has not sold within said ninety (90) day period or entered into an agreement to sell the securities within said ninety (90) day period (or sold and issued securities in accordance with the Person foregoing within ninety (90) days from the date of said agreement), the Company shall not thereafter issue or an Affiliate of sell any New Securities in a private placement for cash without first offering such Person) identified securities to the Investors in the Subsequent Financing Noticemanner provided above.
(d) For purposes of this Agreement, an Investor's "pro rata" portion shall be the ratio of (A) the number of shares of Series B Preferred Stock held by such Investor to (B) the total number of shares of Series B Preferred Stock then outstanding.
(e) The rights to purchase securities of the Company pursuant to this Agreement may not be assigned by the Investors and shall terminate upon the conversion of the Series B Preferred Stock into Common Stock.
Appears in 2 contracts
Sources: Series B Preferred Stock Purchase Agreement (Bb Biotech Ag), Series B Preferred Stock Purchase Agreement (Alexion Pharmaceuticals Inc)
Right of First Refusal. Subject to the terms and conditions of this Subsection 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investor.
(a) The Company shall notgive notice (the “Offer Notice”) to the Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within twenty (20) days after the Offer Notice is given, the Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, without the prior written consent as applicable, of the InvestorSeries C-1 Preferred Stock, offerSeries C-2 Preferred Stock, sellthe Warrants and any other Derivative Securities then held by the Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion of all then-outstanding convertible securities and the exercise of all then-outstanding warrants or other rights to purchase Common Stock). At the expiration of such twenty (20) day period, grant any option the Company shall promptly notify the Investor and each other Person who has the preemptive or similar right to purchasesubscribe, or otherwise dispose of (or announce any offer, sale, grant or any option and who elects to purchase or acquire all the shares available to it, of any other dispositionPerson’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Person (including the Investor) electing to purchase such securities may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which such Persons were entitled to subscribe but that were not subscribed for which is equal to the proportion that the shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the securities held by it to the shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of securities held by all of such Persons who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of its equity ninety days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Subsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or equity-equivalent securities acquired as provided in Subsection 4.1(b), the Company may, during the ninety (90) day period following the expiration of the periods provided in Subsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of its Affiliates the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investor in accordance with this Subsection 4.1.
(d) The right of first refusal in this Subsection 4.1 shall not be applicable to Exempted Securities (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements Series C Certificate of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partnerDesignations), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.
Appears in 2 contracts
Sources: Investor Rights Agreement (VirtualScopics, Inc.), Series C Preferred Stock and Warrant Purchase Agreement (VirtualScopics, Inc.)
Right of First Refusal. The Company shall not, directly or indirectly, without Upon the prior written consent Closing of the InvestorOffering, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except eighteen (i18) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect months from such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time periodClosing, the Company may effect the Subsequent Financing substantially upon the terms grants each of Maxim and to the Persons J▇▇▇▇▇ ▇▇▇▇▇▇ & Co., LLC (or Affiliates of such Persons“JG”) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (the “Right of First Refusal”) to act as lead managing underwriter and book-runner and/or placement agent for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken during such period by the Company, any Subsidiary, or any successor to the Company (each, a “Subject Transaction”), at each of Maxim’s and JG’s sole and exclusive discretion, on terms and conditions customary to each of Maxim and JG for such Subject Transactions. The Right of First Refusal shall not apply to the private placement fund-raising efforts of Immutak. For the avoidance of doubt, the Right of First Refusal shall apply to: (a)) the public equity fund-raising efforts of Immutak; and (b) solely in the event that either Immutak’s securities become publicly traded or Immutak merges with and into the Company such that the Company’s majority operations are the operations currently conducted by Immutak, if to any offerings undertaken by Immutak and/or the Subsequent Financing subject Company. In the event that both Maxim and JG exercise their respective Right of First Refusal as to the initial Subsequent Financing Notice same public equity offering, the economic participation between Maxim and JG for this Right of First Refusal on such future public equity offering shall be 80% to Maxim and 20% to JG. For the avoidance of any doubt, the Company shall not have been consummated for retain, engage or solicit any reason on additional investment banker, book-runner, financial advisor, underwriter and/or placement agent in a Subject Transaction without the express written consent of Maxim and JG. The Company shall notify Maxim and JG of its intention to pursue a Subject Transaction, including the material terms set forth in such Subsequent Financing Notice thereof, by providing written notice thereof by registered mail or overnight courier service addressed to Maxim. If Maxim fails to exercise its Right of First Refusal with respect to any Subject Transaction within sixty ten (6010) Trading Business Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate mailing of such Personwritten notice, then Maxim shall have no further claim or right with respect to the Subject Transaction. If JG fails to exercise its Right of First Refusal with respect to any Subject Transaction within ten (10) identified Business Days after the mailing of such written notice, then JG shall have no further claim or right with respect to the Subject Transaction. Each of Maxim and JG may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by Maxim or JG shall not adversely affect its Right of First Refusal with respect to any other Subject Transaction during the Subsequent Financing Noticeeighteen (18) month period agreed to above.
Appears in 2 contracts
Sources: Underwriting Agreement (GeoVax Labs, Inc.), Underwriting Agreement (GeoVax Labs, Inc.)
Right of First Refusal. The Company shall notis hereby granted the right of first refusal (the "First Refusal Right"), directly exercisable in connection with any proposed sale or indirectly, without the prior written consent other transfer of the InvestorShares as to which the transfer prohibition set forth in Section 2 above shall have lapsed. For purposes of this Section 5, offerthe term "transfer" shall include any assignment, sellpledge, grant any option to purchaseencumbrance, or otherwise dispose other disposition for the value of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is Shares intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted made by the Company, (ii) shares issued upon exercise of Employee. In the event the Employee desires to accept a bona fide third-party offer for any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price Shares (the shares subject to such offer to be hereinafter called, solely for the acquisition by purpose of this Section 5, the "Target Shares"), such offer may be accepted only in accordance with the provisions of this Section 5, and only after the Employee has promptly (i) delivered to the Secretary of the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Disposition Notice") of its intention to effect such Subsequent Financingthe offer and the basic terms and conditions thereof, which Subsequent Financing Notice shall describe in reasonable detail including the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto purchase price and (Bii) provided satisfactory proof that the Investor shall disposition of the Target Shares to the third-party offeror would not have notified be in contravention of the provisions set forth in this Agreement, and, that such third-party offeror (including any parent company, subsidiary, division, joint venture, or other affiliate thereof) is not engaged in any business or activity (including any announced business or activity) which directly or indirectly competes with the products or services of the Company, as the Company by 5:00 p.m. shall determine in its reasonable discretion. The Company (Salt Lake City timeor its assignees) on the fifth shall, for a period of thirty (5th30) Trading Day after its days following receipt of the Subsequent Financing Disposition Notice, have the right to repurchase not less than all of the Target Shares specified in the Disposition Notice upon substantially the same terms and conditions specified therein. Such right shall be exercisable by written notice (the "Exercise Notice") delivered to Employee prior to the expiration of its willingness the thirty (30) day exercise period. If such right is exercised with respect to enter into or otherwise provide all the Target Shares specified in the Disposition Notice, then the Company (or to cause its designee to provide)assignees) shall effect the repurchase of the Target Shares, subject to completion including payment of mutually acceptable documentationthe purchase price, financing not more than five (5) business after the delivery of the Exercise Notice; and at such time the Employee shall deliver to the Company on substantially the terms set forth certificates representing the Target Shares to be repurchased, each certificate to be properly endorsed for transfer. The Target Shares so purchased shall thereupon be canceled and cease to be issued and outstanding shares of the Company's Common Stock. Should the purchase price specified in the Subsequent Financing NoticeDisposition Notice be payable in property other than cash or evidences of indebtedness, the Company (or it assignees) shall have the right to pay the purchase price in the form of cash equal in amount to the value of such property. If the Investor shall fail to notify Employee and the Company (or its assignees) cannot agree on such cash value within ten (10) days after the Company's receipt of its intention to enter into such negotiations within such time periodthe Disposition Notice, the valuation shall be made by an appraiser of recognized standing selected by the Employee and the Company may effect (or its assignees), or, if they cannot agree on an appraiser within twenty (20) days after the Subsequent Financing substantially Company's receipt of the Disposition Notice, each shall select an appraiser of recognized standing and the two appraisers shall designate a third appraiser of recognized standing, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Employee and the Company. The closing shall then be held on the later of (i) the fifth business day following delivery of the Exercise Notice or (ii) the 15th day after such cash valuation shall have been made. In the event the Exercise Notice is not given to Employee within thirty (30) days following the date of the Company's receipt of the Disposition Notice, Employee shall have a period of thirty (30) days thereafter, in which to sell or otherwise dispose of the Target Shares upon the terms and conditions (including the purchase price) no more favorable to the Persons (or Affiliates of such Persons) set forth third-party Employee than those specified in the Subsequent Financing Disposition Notice; provided, however, that any such sale or disposition must not be effected in contravention of the Company provisions of this Agreement. In the event Employee does not sell or otherwise dispose of the Target Shares within the specified thirty (30) day period, the Company's First Refusal Right shall provide continue to be applicable to any subsequent disposition of the Investor Target Shares by Employee until such right lapses in accordance with Section 5(g). In the event of any stock dividend, stock split, recapitalization or other transaction affecting the Company's outstanding Common Stock as a second Subsequent Financing Noticeclass effected without receipt of consideration, and then any new, substituted or additional securities or other property which is by reason of such transaction distributed with respect to the Investor Target Shares shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing be immediately subject to the initial Subsequent Financing Notice Company's First Refusal Right hereunder. The First Refusal Right under this Section 5 shall not lapse and cease to have been consummated for any reason effect upon the earliest to occur of (i) the first date on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date which shares of the initial Subsequent Financing Notice with Company's Common Stock are held of record by more than five hundred (500) persons, (ii) a determination is made by the Person Company's Board of Directors that a public market exists for the outstanding shares of the Company's Common Stock or (or iii) a firm commitment underwritten public offering pursuant to an Affiliate effective registration statement under the Securities Act, covering the offer and sale of such Person) identified the Company's Common Stock in the Subsequent Financing Noticeaggregate amount of at least $7,500,000. However, the market stand-off provisions of Section 8 shall continue to remain in full force and effect following the lapse of the First Refusal Right hereunder.
Appears in 2 contracts
Sources: Restricted Stock Agreement (Peregrine Systems Inc), Restricted Stock Agreement (Peregrine Systems Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without (a) In the prior written consent event that a member of the Investor, offer, sell, grant any option Verizon Shareholder Group desires to purchasemake a Verizon Subject Transfer, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction event that is intended to be exempt from the registration requirements a member of the Securities Act Vodafone Shareholder Group desires to make a Vodafone Subject Transfer (each such member of the Verizon Shareholder Group and the Vodafone Shareholder Group in such circumstance a "Transferring Shareholder") (i) it must have received, prior to making or agreeing to make such Transfer, a bona fide written offer for such Series A Shares from a Person not Affiliated with such Transferring Shareholder or (ii) it must have irrevocably decided to make a sale of such Series A Shares in one or more public securities markets on which such Series A Shares are traded (a "Subsequent FinancingMarket Sale") for and, before making or agreeing to make such Transfer, shall give notice to each member of the Verizon Shareholder Group, in the case of a period Vodafone Subject Transfer, or to each member of 180 days after the Effective DateVodafone Shareholder Group, except in the case of a Verizon Subject Transfer (isuch intended recipient or recipients of such notice are referred to as the "Offeree Shareholders", whether one or more) and to the granting Corporation of options or warrants the number of Series A Shares proposed to employeesbe Transferred (the "Offered Shares"), officers of the proposed transferee thereof (or, in the case of a proposed Market Sale, that a Market Sale is intended) and directors, of the price and all other material terms and conditions of the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, proposed Transfer (ii) shares issued upon exercise such notice shall include a copy of any currently outstanding warrants bona fide written offer and upon conversion of any currently outstanding convertible preferred stock is hereinafter referred to as the "Offer Notice"); provided, however, that in each the case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with Verizon Subject Transfer, the Offer Notice shall also separately include a strategic partner two percent (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v2%) shares issued to pay part or all of premium on the purchase price for the acquisition to be paid by the Company Vodafone Shareholder Group in the event it exercises its rights of first refusal under this Section 6.4. The price specified in the Offer Notice with respect to a Person (which, for purposes of this clause (v), Market Sale shall not include an individual be the average price at which the Series A Shares last traded during the preceding five trading days on the principal exchange or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers principal market on or in which such Market Sale is proposed to the Investor a written notice be effected (the "Subsequent Financing NoticeMarket Price"). The Offer Notice shall constitute an irrevocable offer (the "Right of First Refusal Offer") subject to the provisions of its intention this Article VI by the Transferring Shareholder to effect such Subsequent Financingsell to the Offeree Shareholders (and their respective designates, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and if any) all (Bbut not less than all) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide)Offered Shares, subject to completion of mutually acceptable documentation, financing to the Company on substantially upon the terms set forth in the Subsequent Financing NoticeOffer Notice or, at the option of the Offeree Shareholders (and such designates), pursuant to the all cash alternative purchase price established pursuant to Section 6.4(c) hereof.
(b) The Offer Notice shall be considered to be delivered to each Offeree Shareholder and the Corporation when deemed delivered pursuant to Article IX hereof. The date on which the Offer Notice is delivered to the Verizon Shareholder Group is referred to herein as the "Notice Date."
(c) In the event that the bona fide written offer transmitted with the Offer Notice provides for consideration to be paid by the proposed transferee other than wholly in cash, the Transferring Shareholder shall, in good faith, specify in the Offer Notice an all cash alternative purchase price of equivalent value (discounted to present value). In the event that the Offeree Shareholders and/or their respective designates representing a majority of the number of Series A Shares beneficially owned by all Offeree Shareholders shall determine by vote or consent on or before fifteen (15) days after the Notice Date that the all cash alternative purchase price proposed by the Transferring Shareholder is not acceptable, they shall so notify the Transferring Shareholder in writing on or before such fifteenth day, specifying in such notice their proposed all cash alternative purchase price of equivalent value (discounted to present value), stating in such notice the name, address and telecopier number of the Offeree Shareholder or Offeree Shareholder designate who shall be the notice party for the Offeree Shareholders and such designate(s) for purposes of communications relating to this Section 6.4(c) for the duration of the then-current Right of First Refusal Offer and designating in such notice an evaluator who is a member of an investment banking firm of national reputation in the United States or Mexico who they reasonably believe to be expert in such valuations. If for whatever reason no such notice is delivered to the Transferring Shareholder by the Offeree Shareholders and/or Offeree Shareholder designates on or before such fifteenth day, the all cash alternative purchase price specified in the Offer Notice by the Transferring Shareholder shall be the all cash alternative purchase price. If such notice is timely delivered to the Transferring Shareholder, the Transferring Shareholder shall on or before the fifth day after receipt of such notice designate in writing to the Offeree Shareholders as a second evaluator another investment banker meeting such description (unless the Transferring Shareholder agrees in writing within such five day period to the all cash alternative purchase price specified, or to abide by the decision of the evaluator specified, by the Offeree Shareholders and/or Offeree Shareholder designates). If the Investor Transferring Shareholder does not designate such second evaluator in writing to the Offeree Shareholders (or does not agree in writing to the cash alternative purchase price specified, or to abide by the decision of the evaluator specified, by the Offeree Shareholders and/or the Offeree Shareholder designates) on or before such fifth day, the Transferring Shareholder shall fail be deemed to have agreed to the all cash alternative purchase price specified by the Offeree Shareholders and/or such designates. If a second evaluator is timely designated by the Transferring Shareholder, the two evaluators shall each specify a fair all cash equivalent purchase price on or before the tenth day after the appointment of the second evaluator. If such two cash equivalent purchase prices vary by less than ten percent (10%) of the higher of such prices, the average of such two prices shall be the all cash equivalent purchase price. If such two prices vary by such percentage or more than such percentage, the two evaluators shall on or before the third day after such determination designate a third evaluator meeting the above description for evaluators. If the first two evaluators cannot agree in a timely manner on the choice of a third evaluator, they shall so notify the Company parties and any party may request the appropriate official of its intention the International Chamber of Commerce to enter into such negotiations within such time periodappoint an impartial third Person to act as the third evaluator. Once designated, the Company may effect third evaluator shall specify a fair all cash equivalent purchase price on or before the Subsequent Financing substantially upon tenth day after the terms and to the Persons (or Affiliates designation of such Persons) set forth in third appraiser. The determination of two of the Subsequent Financing Noticethree evaluators shall be binding and shall be the all cash alternative; provided, however, that, if no two evaluations agree as to the fair all cash equivalent purchase price, the average of the two closest all cash equivalent purchase prices shall be the all cash equivalent purchase price. The expenses of the evaluators shall be shared one-half each by the Transferring Shareholder and the Offeree Shareholders who (directly or through their respective designates) voted that the Company shall provide all cash alternative purchase price proposed by the Investor with a second Subsequent Financing Notice, and Transferring Shareholder was not acceptable.
(d) The Offeree Shareholders and/or Offeree Shareholder designates may at their option accept the Investor shall again have the right Right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason First Refusal Offer on the terms set forth of the Offer Notice or, if so determined by Offeree Shareholders and/or Offeree Shareholder designates representing a majority of the number of Series A Shares beneficially owned by all Offeree Shareholders wishing to acquire (or to have its designates acquire) Offered Shares, at the all cash alternative purchase price. The Right of First Refusal Offer may be accepted on such terms, but only in such Subsequent Financing whole, by delivering written notice (the "Acceptance Notice") to the Transferring Shareholder on any date on or before the 30th day (or 10th day in the case of a Market Sale) following the later of the Notice within sixty (60) Trading Days after Date or the date the all cash alternative purchase price is finally determined pursuant to Section 6.4(c). The number of Offered Shares to be acquired by each Offeree Shareholder or Offeree Shareholder designate shall be determined as agreed to in writing prior to the delivery of the initial Subsequent Financing Acceptance Notice with among the Person (or an Affiliate Offeree Shareholders and Offeree Shareholder designates electing to accept such Right of such Person) identified in the Subsequent Financing NoticeFirst Refusal Offer.
Appears in 2 contracts
Sources: Shareholders Agreement (Grupo Iusacell Sa De Cv), Shareholders Agreement (Grupo Iusacell Celular Sa De Cv)
Right of First Refusal. (a) From the Effective Date through 5:00 p.m. (Pacific Time) on January 31, 2016 (except as set forth below), the Lenders shall collectively have a preemptive right to subscribe for up to 100% of all Common Stock and Common Stock Equivalents that may be offered or sold by the Company to third parties (other than Excluded Securities), up to $10,000,000 in aggregate offering proceeds, including any amounts converted pursuant to Section 2.2 (the “Preemptive Right”).
(b) The Majority Note Holders may elect to extend the Preemptive Right through 5:00 p.m. (Pacific Time) on March 31, 2016 by providing notice to Company in writing and by funding an additional $1,000,000 in aggregate Consideration on or before 5:00 p.m. (Pacific Time) on January 31, 2016, which additional loans shall be evidenced by additional notes in substantially the form of Exhibit A attached hereto.
(c) If the Company and the Majority Note Holders execute a term sheet, letter of intent or other non-binding agreement setting forth the proposed terms on which the Lenders would purchase Common Stock, Preferred Stock and/or other Common Stock Equivalents from the Company (a “Term Sheet”) prior to the expiration of the Preemptive Right, then the Preemptive Right shall be extended for an additional 30 days from the date of such Term Sheet (notwithstanding the expiration dates provided for in Sections 6.2(a) and 6.2(b)). The Preemptive Right shall automatically terminate if the Lenders notify the Company in writing that they have decided not to put forth a Term Sheet during the term of the Preemptive Right. The Parties expect that the financing proposed in the Term Sheet (the “Proposed Offering”) will be a private placement of securities under Section 4(a)(2) of the Securities Act and Rule 506(c) of Regulation D thereunder and will include the following terms:
(i) a purchase price of $.18 per unit, each unit to be composed of one share of Common Stock and a warrant to purchase one-half of a share of Common Stock at an exercise price equal to 125% of the unit purchase price;
(ii) minimum aggregate proceeds to the Company of $7.5 million;
(iii) to the extent requested by the Company, the Lenders will make reasonable accommodations to permit certain existing Company stockholders and other investors to participate in the Proposed Offering, subject to securities law considerations;
(iv) the Parties shall agree to use commercially reasonable efforts after the closing of the Proposed Offering to approve the adoption of an equity incentive plan for the benefit of the Company’s officers, directors, key employees and other service providers;
(v) after the closing of the Proposed Offering, the Majority Note Holders will have the right to cause the Company to nominate a majority slate of directors identified by the Majority Note Holders and reasonably acceptable to the Company, with such right to continue until the earlier of (x) such time as the Lenders collectively no longer beneficially hold at least 25% of the outstanding Common Stock of the Company (determined on an as-converted basis and without regard to the Blocker or any similar blocking mechanisms), or (y) the fourth anniversary of such closing.
(d) The Company covenants and agrees that during the term of the Preemptive Right, it shall not, directly or indirectly, not consummate the pending offering of Common Stock and certain Common Stock Equivalents described in the Company’s Registration Statement on Form S-1 (File No. 333-205261) without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeLenders.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Capstone Therapeutics Corp.)
Right of First Refusal. The Company shall notIf during the Restricted Period, PHL, Holdings or any of their Affiliates wishes to acquire, directly or indirectly, without a Controlling interest in a Property-Casualty Business where such acquisition would cause them to fail to comply with the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined limitation contained in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except clause (i) the granting of options or warrants Section 5.17.4, they may do so, provided they sell, subject to employeesproviding Buyer with a right of first refusal with respect to, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted such portion (designated by the Companyselling party) of the aggregate Property-Casualty Businesses acquired during the Restricted Period as necessary in order to comply with such limitation once the sale that is subject to such right is consummated. PHL, Holdings or their Affiliates, whichever of them wishes to acquire a Property-Casualty Business subject to a right of first refusal hereunder, shall send a notice to Buyer which (i) identifies the Property-Casualty Business or portion thereof it wishes to sell, (ii) shares issued upon exercise of any currently outstanding warrants provides relevant summary financial information pertaining to the business identified in clause (i), and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with states the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing offering price and selling of securities any other material terms for such business. Buyer shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date days from receipt of the initial Subsequent Financing Notice with notice hereunder in which to elect whether to acquire the Person (or an Affiliate of such Person) business identified in clause (i), which election shall be evidenced by a writing delivered to the Subsequent Financing NoticeOfferor by the close of business. In the event Buyer does not timely exercise its rights hereunder, or, having exercised its rights, fails to close the sale in a timely manner, the Offeror shall be entitled to sell the business identified in clause (i) upon the terms such business was offered to Buyer pursuant to this paragraph, but may not materially modify such terms without re-offering such business to Buyer hereunder upon the proposed new terms.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Phoenix Companies Inc/De), Stock Purchase Agreement (Hilb Rogal & Hamilton Co /Va/)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for For a period of 180 days after three (3) years from the Effective Datedate of this Agreement, except the Company will not enter into an agreement for a public or private offering for cash (i) the granting of options or warrants other than to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for Company or any affiliate of the acquisition Company or any securities offered by the Company or any affiliate for cash to or through any person, firm or corporation other than ▇▇▇▇▇ Financial Services, Inc. unless and until the Company shall have first negotiated for the sale of a Person such securities with or through or offered to sell such securities to ▇▇▇▇▇ Financial Securities, Inc. Such affiliates shall include, but not be ----------------------------------------- limited to, persons owning 10% or more of the common stock of the Company. The ------------------------------------------------------------------------- Company shall notify ▇▇▇▇▇ Financial Services, Inc. in writing of the Company's intention or the intention of any affiliate of the Company to offer such ------------------------------------------------ securities in an offering covered by this right of first refusal and the terms (which, for purposes including the price or other method of this clause (v), shall not include an individual determining the underwriting or group of individualsplacement discount or fee) and (vi) shares issued in a bona fide public offering by the Company conditions of its (and not the proposed offering. ▇▇▇▇▇ Financial Services, Inc. shall then have 10 days from the date of any receipt of its stockholders') securities, unless (A) the Company delivers to the Investor a such written notice (the "Subsequent Financing Notice") of its intention to effect decide whether to participate in such Subsequent Financingproposed offering. If ▇▇▇▇▇ Financial Services, which Subsequent Financing Notice shall describe Inc. determines that it does not wish to participate in reasonable detail the proposed terms of such Subsequent Financingoffering, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing then it shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to so notify the Company of its intention in writing not later than 30 days from the receipt of notice from the Company of such proposed offering. If ▇▇▇▇▇ Financial Services, Inc. determines not to participate in such offering, then the Company may, within a period of 90 days from the date of receipt of notice from ▇▇▇▇▇ Financial Services, Inc. of its intention not to participate, enter into a letter of intent for the public sale or, as appropriate, a contract for the private sale, of any of such negotiations within such time periodsecurities through any other person, firm or corporation on the same general terms and conditions as those which were tendered by the Company may effect to ▇▇▇▇▇ Financial Services, Inc. Provided, however, as to a public offering, it a definitive underwriting agreement with a firm commitment is not executed by the Subsequent Financing substantially upon Company with such third party within 180 days thereafter, all the terms and rights of ▇▇▇▇▇ Financial Services, Inc. hereunder with respect to such offering shall be reinstated. Nothing in this Agreement shall be construed as granting the Persons (or Affiliates continuation of such Persons) set forth in preferential right on the Subsequent Financing Notice; providedpart of ▇▇▇▇▇ Financial Services, that the Inc. beyond such three-year period. The Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right to ----------------------------------- terminate this right of first refusal set forth above in this Section 6.13 (a)upon the payment of $21,500 to ▇▇▇▇▇ -------------------------------------------------------------------------- Financial Services, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.Inc. -----------------------
Appears in 2 contracts
Sources: Underwriting Agreement (Eldorado Artesian Springs Inc), Underwriting Agreement (Eldorado Artesian Springs Inc)
Right of First Refusal. The Company No stockholder shall notsell, directly assign, pledge, or indirectly, without the prior written consent in any manner transfer any of the Investorshares of common stock of the Corporation (“Common Stock”) or any right or interest therein held by such stockholder, whether voluntarily or by operation of law, or by gift or otherwise (each, a “Transfer”), except by a Transfer which meets the requirements hereinafter set forth in this SECTION 11.01.
(a) If the stockholder receives a bona fide offer acceptable to the stockholder to purchase any Common Stock held by such stockholder, then the stockholder shall first give written notice thereof to the Corporation (the “Transfer Notice”). The notice shall name the proposed transferee and state the number of shares of Common Stock to be transferred (the “Transfer Stock”), the price per share and all other terms and conditions of the offer.
(b) For fifteen (15) days following receipt of the Transfer Notice, sellthe Corporation shall have the right to deny the Transfer by written notice for any legitimate corporate purpose, grant as determined by the Board of Directors, which shall include, but not be limited to: (i) if such Transfer to individuals, companies or any option other form of entity identified by the Corporation as a potential competitor or considered by the Corporation to purchasebe unfriendly; or (ii) if such Transfer increases the risk of the Corporation having a class of security held of record by two thousand (2,000) or more persons, or five hundred (500) or more persons who are not accredited investors (as such term is defined by the SEC), as described in Section 12(g) of the 1934 Act and any related regulations, or otherwise dispose requiring the Corporation to register any class of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities 1934 Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options ; or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued if such Transfer would result in the loss of any federal or state securities law exemption relied upon by the Corporation in connection with the capitalization initial issuance of such shares or creation the issuance of a joint venture with a strategic partner any other securities; or (a Person whose business iv) if such Transfer is primarily that facilitated in any manner by any public posting, message board, trading portal, internet site, or similar method of investing and selling communication, including without limitation any trading portal or internet site intended to facilitate secondary transfers of securities shall not be deemed a strategic partner), securities; or (v) shares issued if such Transfer is to pay part be effected in a brokered transaction. The Corporation or its assigns shall also, whether or not the Corporation has any legitimate corporate purpose for denying the Transfer, have the option to purchase any or all of the purchase Transfer Stock at the price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice Transfer Notice. In the event the Corporation elects to purchase any or all of the Transfer Stock, it shall give written notice to the selling stockholder of its election and settlement for said Common Stock shall be made as provided below in SECTION 11.01(c).
(c) If the Corporation or any assignee of the Corporation elects to acquire any of the Transfer Stock, the Corporation or such assignee shall so notify the selling stockholder and settlement thereof shall be made within thirty (30) days after the Corporation receives the Transfer Notice; provided that if the consideration proposed to be paid for the Transfer Stock is in property, services or other non-cash consideration, the Corporation or such assignee may pay the cash value equivalent thereof, (as determined in good faith by the Corporation’s Board of Directors), on the same terms and conditions set forth in the Transfer Notice.
(d) If the Corporation or its assignee does not elect to acquire all of the Transfer Stock in accordance with SECTION 11.01(c) above, the selling stockholder may, within the sixty (60) Trading Days after day period following the date Corporation’s receipt of the initial Subsequent Financing Notice Transfer Notice, if the Corporation has not denied the Transfer in writing for a legitimate corporate purpose, sell all, but not less than all, of the Transfer Stock which was not acquired by the Corporation or its assignee, provided that said sale shall not be on terms or conditions more favorable to the purchaser than those contained in the bona fide offer set forth in the Transfer Notice. All Transfer Stock shall continue to be subject to the provisions of this SECTION 11.01 in the same manner as before said transfer.
(e) Notwithstanding the above, the following transactions shall be exempt from the provisions of this SECTION 11.01:
(1) A stockholder’s transfer of any or all Common Stock to such stockholder’s spouse (including, without limitation, any domestic partner or partner by virtue of same-sex marriage and/or civil union), lineal or adopted descendent, father, mother, brother, or sister.
(2) A stockholder’s bona fide pledge or mortgage of any or all Common Stock with a commercial lending institution.
(3) A stockholder’s transfer of any or all of such stockholder’s Common Stock to any other stockholder of the Corporation.
(4) A stockholder’s transfer of any or all of such stockholder’s Common Stock to a person who, at the time of such transfer, is an officer or director of the Corporation in a transaction approved by the Board of Directors.
(5) In the case of a stockholder that is an entity, upon a transfer by such stockholder to any of its Affiliates (as hereinafter defined) or the stockholders, members, partners or other equity holders of it or its Affiliates, including but not limited to, transfers in connection with the Person dissolution of one or more of its Affiliates. “Affiliate” as used herein shall mean any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with such person or entity, including, without limitation, any partner, officer, director, or member of such person or entity and any venture capital fund now or hereafter existing which is controlled by or under common control with one or more general partners (or an Affiliate of members thereof) or shares the same management company (or members thereof) with such Person) identified in the Subsequent Financing Noticeperson or entity.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Right of First Refusal. (a) If the Stockholder intends to sell Securities with Voting Power constituting less than five percent (5%) of the Total Voting Power of the Company to any Person, other than a Qualified Purchaser, that beneficially owns five percent (5%) or more of the Total Voting Power of the Company, as indicated on a Schedule 13D or 13G filed with the SEC, in either case in a transaction other than in (i) an underwritten public offering in accordance with Section 2.2 above, (ii) a tender offer, merger, reorganization or consolidation of the Company or (iii) a sale of the Common Stock in a transaction where a majority of the Common Stock held by stockholders other than the Holders or a majority of Common Stock held by Affiliates of the Company is being sold, then the Stockholder shall provide written notice thereof to the Company (the "STOCKHOLDER NOTICE") providing the Company with the first right to acquire the Securities the Stockholder intends to sell free and clear of all liens. The Stockholder Notice shall specify the number of Securities involved, the name and address of the proposed purchaser, and the proposed price per share. For a period of ten (10) business days after delivery of the Stockholder Notice, the Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option be entitled to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option elect to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements all, but not less than all, of the Securities Act described in the Stockholder Notice, at the price per share described in such Stockholder Notice. The Company may exercise such right by delivery of a written notice (a "Subsequent FinancingCOMPANY PURCHASE ELECTION") to the Stockholder, irrevocably electing to purchase such Securities that the Stockholder intends to sell and shall have thirty (30) days to consummate said purchase from the Stockholder. In the event that the Company has not delivered a Company Purchase Election prior to the expiration of such ten (10) day period or has failed to purchase and pay for such Securities within said thirty (30) day period, the Company's right to purchase such Securities shall expire, and the Stockholder shall be entitled to sell the Securities described in the Stockholder Notice for a period of 180 ninety (90) days after following the Effective Datedate of the Stockholder Notice, except but only to the proposed purchaser set forth in the Stockholder Notice and only for a purchase price of at least ninety-five percent (i95%) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Stockholder Notice. If In the Investor shall fail to notify event the Company Stockholder has not sold such Securities by the end of its intention to enter into such negotiations within such time sixty (60) day period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates rights of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)3.3 shall apply to any subsequent sale of the Voting Stock in excess of the threshold amount by the Stockholder. Notwithstanding the foregoing, if the Subsequent Financing subject to the initial Subsequent Financing Notice provisions of this Section shall not have been consummated for apply to any reason on sales or other transfers by the terms set forth in such Subsequent Financing Notice within sixty Stockholder to any of its Affiliates.
(60b) Trading Days after The provisions of this Section 3.3 shall terminate upon the date second anniversary of the initial Subsequent Financing Notice with the Person (or an Affiliate Effective Date of such Person) identified in the Subsequent Financing Noticethis Agreement.
Appears in 2 contracts
Sources: Stockholder Rights Agreement (Hewlett Packard Co), Stockholder Rights Agreement (Novadigm Inc)
Right of First Refusal. The Subject to the terms and conditions specified in this Section 2.4, the Company shall not, directly or indirectly, without the prior written consent of the hereby grants to each Investor and to each Founder (together with each Investor, offer, sell, grant any option an “RFR Offeree”) a right of first refusal with respect to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering future sales by the Company of its Shares (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provideas hereinafter defined), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms exceptions set forth in Section 2.4(d). Subject to paragraph (d), each time the Subsequent Financing Company proposes to offer any (i) shares of Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into or exchangeable for capital stock of the Company (collectively, “Shares”), the Company shall first make an offering of such Shares to each RFR Offeree in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the RFR Offerees stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of the Notice, each RFR Offeree may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held by such RFR Offeree (assuming full conversion and exercise of all convertible and exercisable securities then outstanding and held by such RFR Offeree) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that RFR Offerees are entitled to purchase pursuant to subsection 2.4(b) are not elected to be purchased as provided in subsection 2.4(b) hereof, the Company may, during the one hundred twenty (120)-day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Investor shall fail to notify the Company of its intention to does not enter into such negotiations an agreement for the sale of the Shares within such time period, or if such agreement is not consummated within sixty (60) days of the Company may effect execution thereof, the Subsequent Financing substantially upon the terms right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Persons RFR Offerees in accordance herewith.
(or Affiliates d) The right of first refusal in this Section 2.4 shall not be applicable to the issuance of Exempted Securities, as such Persons) set forth term is defined in the Subsequent Financing Notice; providedCertificate of Incorporation. In addition to the foregoing, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 2.4 shall not be applicable with respect to any RFR Offeree in any offering of Shares if (a)i) at the time of such offering, if the Subsequent Financing subject RFR Offeree is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act, and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any RFR Offeree; provided, however, that an Investor that is a venture capital fund may assign or transfer such rights to an affiliate of such Investor or an affiliated venture capital fund.
(f) This Section 2.4 shall terminate and be of no further force or effect immediately prior to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date consummation of the initial Subsequent Financing Notice with earlier of (i) the Person Initial Offering or (or an Affiliate of such Personii) identified a Liquidation Event, as that term is defined in the Subsequent Financing NoticeCertificate of Incorporation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Karyopharm Therapeutics Inc.), Investors’ Rights Agreement (Karyopharm Therapeutics Inc.)
Right of First Refusal. The Company shall not, directly or indirectly5.1.1 Except as required by the requirements of laws and regulations and the provisions of the Agreement, without the prior written consent of the InvestorInvestors, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its the Actual Controller shall not transfer the equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act Target Company held by it to any third party (a "Subsequent Financing") for a period hereinafter referred to as the “Target Transferee”), nor may it pledge or create any encumbrance on any equity of 180 days after the Effective DateTarget Company held by it.
5.1.2 Unless otherwise agreed in the Agreement, except with the written approval of the Investors, when the Actual Controller intends to directly or indirectly transfer all or part of the equity of the Target Company held by it to any third party (i) the granting of options or warrants to employees, officers and directors“Target Transferee”), and the issuance of shares upon exercise of options grantedTransferee has made a legally binding offer, under any stock option plan heretofore the Investors shall have the right to purchase all or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for entity to be transferred in preference to the acquisition by Target Transferee on the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by same terms. In the Company of its (and not event of any of its stockholders') securitiesthe above circumstances, unless (A) the Company delivers to Actual Controller shall notify the Investor a written notice (the "Subsequent Financing Notice") Investors in writing of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended the equity interest to be raised thereunder, transferred and the Person with whom such Subsequent Financing transfer price and main conditions (the “Transfer Notice”) upon mutual agreement between the Parties.
5.1.3 The Investors shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of Actual Controller in writing whether to exercise its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above within thirty (30) days after receiving the transfer notice; If the Investors fail to complete such written notice within such thirty (30) days, the Investors shall be deemed to have agreed to waive its right of first refusal. Notwithstanding any other provision of the Agreement, in this Section 6.13 the event that the Actual Controller directly or indirectly transfers its equity interest in the Target Company, unless (a), if 1) the Subsequent Financing subject Target Transferee agrees in writing to the initial Subsequent Financing Notice shall not have been consummated for any reason on be bound by the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice Agreement and the Articles of Association of the Target Company, and to inherit all obligations of the Actual Controller under the Agreement and the Articles of Association of the Target Company; and (2) such transfer complies in all respects with the Person applicable provisions of the Agreement and the Articles of Association of the Target Company, no transfer shall be made by the Actual Controller (or an Affiliate of such Person) identified unless otherwise agreed in writing by the Subsequent Financing NoticeParties).
Appears in 2 contracts
Sources: Agreement on Investment (Autozi Internet Technology (Global) Ltd.), Agreement on Investment (Autozi Internet Technology (Global) Ltd.)
Right of First Refusal. The Company (a) Subject to Section 5.4, whenever and as often as any Party desires to sell any Newco Shares (referred to in Sections 5.3 and 5.4 as "Restricted Stock"), such proposed sale must be for an aggregate consideration of at least $100,000 and pursuant to a bona fide written offer to purchase such shares. In such event, the Party desiring to sell Restricted Stock (the "Selling Shareholder") shall notgive written notice to each other Party (for purposes of Sections 5.3 and 5.4 each, directly or indirectlyan "Offeree" and collectively, without the prior written consent "Offerees") and also to Newco to such effect, enclosing a copy of such offer and specifying the number of shares of Restricted Stock that the Selling Shareholder desires to sell, the name of the Investorperson or persons to whom the Selling Shareholder desires to make such sale and the consideration per share of Common Stock that has been offered in connection with such offer. In the event that such consideration includes non-cash consideration, offerthe dollar value of such non-cash consideration shall be its fair market value, sellas reasonably determined by the Board of Directors ("Fair Market Value").
(b) Upon receipt of the Notice, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any the Offerees shall initially have the first right and option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended shares proposed to be exempt from sold for the registration requirements same consideration, at the same purchase price and on the same terms as specified in the Notice, pro rata on the basis of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance number of shares upon exercise of options grantedCommon Stock then held by them, under any stock option plan heretofore or hereinafter duly adopted by exercisable for 20 Business Days after service of the Company, (ii) shares issued upon exercise Notice. Failure of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with Offeree to respond to the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities Notice within such 20-Business Day period shall not be deemed to constitute a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers notification to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms Selling Shareholder of such Subsequent Financing, Offeree's decision not to exercise the amount first right and option to purchase shares of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in Restricted Stock under this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice5.
Appears in 2 contracts
Sources: Service Agreement (Authentidate Holding Corp), Agreement (Authentidate Holding Corp)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent (a) Shares of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction Common Stock that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares you acquire upon exercise of options granted, under any stock your option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), are subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the any right of first refusal set forth above that may be described in this Section 6.13 the Company’s bylaws in effect at such time the Company elects to exercise its right.
(a)b) If there is no right of first refusal described in the Company’s bylaws in effect at such time the Company elects to exercise its right, if then you may not validly transfer (as hereinafter defined) any shares of Common Stock that you acquire upon exercise of your option, or any interest in such shares, unless such transfer is solely for cash consideration and is made in compliance with the Subsequent Financing following provisions (the Company’s “Right of First Refusal”):
(i) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the “Offered Shares”) shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the “notice date,” and the record holder of the Offered Shares shall be hereinafter referred to as the “Offeror.” If, from time to time, there is any stock dividend, stock split or other change in the character or amount of any of the outstanding stock of the corporation the stock of which is subject to the initial Subsequent Financing Notice provisions of your option, then in such event any and all new, substituted or additional securities to which you are entitled by reason of your ownership of the shares acquired upon exercise of your option shall be immediately subject to the Company’s Right of First Refusal with the same force and effect as the shares subject to the Company’s Right of First Refusal immediately before such event.
(ii) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not have been consummated for any reason less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection 10(b)(iii). The Company may exercise its Right of First Refusal by mailing (by registered or certified mail) written notice of exercise of its Right of First Refusal to the Offeror prior to the end of said thirty (30) days. The Company may assign its rights hereunder.
(iii) The price at which the Company may purchase the Offered Shares pursuant to the exercise of its Right of First Refusal shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection 10(b)(i). The Company’s notice of exercise of its Right of First Refusal shall be accompanied by full payment for the Offered Shares and, upon such Subsequent Financing Notice within sixty payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(60iv) Trading Days If, and only if, the option given pursuant to subsection 10(b)(ii) is not exercised, the transfer proposed in the notice given pursuant to subsection 10(b)(i) may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the date expiration of said 30-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said 30-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection 10(b).
(v) As used in this subsection 10(b), the term “transfer” means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the initial Subsequent Financing Notice Company’s stock or any legal or equitable interest therein; provided, however, that the term “transfer” does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this subsection 10(b).
(vi) None of the shares of the Company’s stock purchased on exercise of your option shall be transferred on the Company’s books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this subsection 10(b) have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of your option shall bear an appropriate legend referring to the transfer restrictions imposed by this subsection 10(b).
(vii) The Company’s Right of First Refusal shall expire on the first date upon which any security of the Company is listed (or approved for listing) upon notice of issuance on any securities exchange or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system if such securities exchange or interdealer quotation system has been certified in accordance with the Person (or an Affiliate provisions of such PersonSection 25100(o) identified in of the Subsequent Financing NoticeCalifornia Corporate Securities Law of 1968.
Appears in 2 contracts
Sources: Stock Option Agreement (TorreyPines Therapeutics, Inc.), Stock Option Agreement (TorreyPines Therapeutics, Inc.)
Right of First Refusal. (a) The Company shall notnot issue, directly sell or indirectlyexchange, without the prior written consent agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the InvestorCompany, offerincluding without limitation, sellPreferred Stock, grant (iii) any option to purchasedebt security of the Company (other than debt with no equity feature and no multiple liquidation preference features), including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise dispose of (or announce acquire any offer, sale, grant such equity security or any option such debt security (other than debt with no equity feature or multiple return features) of the Company (the securities described in preceding clauses (i) through (v), the “Offered Securities”), unless in each case the Company shall have first offered to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction sell to each Major Investor that is intended to be exempt from an “accredited investor” within the registration requirements meaning of Rule 501(a) under the Securities Act (each an “Offeree” and collectively, the “Offerees”) as follows: Each Offeree shall have the right to purchase (x) that portion of the Offered Securities determined by multiplying the number of Offered Securities by a "Subsequent Financing"fraction, the numerator of which is the aggregate number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock then held by such Offeree and the denominator of which is the total number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock then held by all of the Investors (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of 180 twenty (20) days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its from receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeOffer.
Appears in 2 contracts
Sources: Investor Rights Agreement (Collegium Pharmaceutical, Inc), Investor Rights Agreement (Collegium Pharmaceutical Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without Xtent hereby grants to Occam the prior written consent right of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option first refusal to purchase or other disposition) any a pro rata share of its equity or equity-equivalent securities or those of its Affiliates New Securities (as defined in Rule 405 this Section 7.7) which Xtent may, from time to time after the date hereof, propose to sell and issue. Occam's pro rata share, for purposes of this right of first refusal, is the ratio of the number of shares of Common Stock of Xtent owned by Occam immediately prior to the issuance of New Securities, assuming full conversion of any Preferred Stock held by Occam and exercise of any option or warrant held by Occam, to the total number of shares of Common Stock of Xtent outstanding immediately prior to the issuance of New Securities, assuming full conversion of all Preferred Stock outstanding and exercise of all outstanding convertible securities, rights, options and warrants to acquire Common Stock of Xtent. This right of first refusal shall be subject to the following provisions:(a) "New Securities" shall mean any capital stock (including Common Stock and/or Preferred Stock) of Xtent whether now authorized or not, and rights, options or warrants to purchase such capital stock, and securities of any type whatsoever that are, or may become, convertible into capital stock; provided that the term "New Securities" does not include:
(i) Series C Preferred Stock purchased under the Series C/C-1 Preferred Stock Purchase Agreement dated February 9, 2005 entered into by Xtent and certain investors (the "Purchase Agreement") or Series C-1 Preferred Stock sold or issued in exchange for Series C Preferred Stock pursuant to the Purchase Agreement;
(ii) shares of Common Stock issued or issuable upon conversion of the Preferred Stock;
(iii) shares of Common Stock issued or issuable to officers, directors and employees of, or consultants to, Xtent pursuant to stock grants, option plans, purchase plans or other employee stock incentive programs or arrangements, in each case approved by the Board of Directors, including the approval of at least two (2) of the members of the Board of Directors elected pursuant to Sections 1(b), 1(c), 1(d) and 1(e) of that certain Amended and Restated Voting Agreement entered into by Xtent and certain holders of Xtent's voting securities dated February 9, 2005 (known hereinafter as the "Preferred Directors"), or upon exercise of options or warrants granted to such parties pursuant to any such plan or arrangement;
(iv) shares of Common Stock issued upon the exercise or conversion of options or convertible securities of Xtent pursuant to the terms of such options or convertible securities as outstanding and in existence as of the date of this Agreement, as amended;
(v) shares of Common Stock issued or issuable as a dividend or distribution on the Preferred Stock or pursuant to any event for which adjustment is made pursuant to Article IV paragraph 4(e), 4(f) or 4(g) of the Certificate of Incorporation of Xtent;
(vi) shares of Common Stock issued in connection with Xtent's first sale of its Common Stock in a bona fide, firm commitment underwriting pursuant to a registration statement filed with the Securities ActExchange Commission, with aggregate net proceeds to Xtent of at least $50,000,000 (after deduction for underwriting discounts, commissions and expenses, if any) and a per share price to the public of at least $8.00 (a "Qualified IPO");
(vii) shares of capital stock, or options, or warrants to purchase shares of capital stock issued or issuable pursuant to the acquisition of another corporation by Xtent by merger, purchase of substantially all of the assets or other reorganization or pursuant to a joint venture agreement, other than a joint venture agreement principally for the purpose of an equity financing, provided, that in any each case, such issuances are approved by the Board of Directors, including the approval of at least two (2) of the Preferred Directors;
(viii) shares of capital stock, or options, or warrants to purchase shares of capital stock issued or issuable to banks, equipment lessors or other financial institutions pursuant to a commercial leasing or debt financing transaction that is intended or similar transaction approved by the Board of Directors, including the approval of at least two (2) of the Preferred Directors;
(ix) shares of capital stock determined by the Board of Directors, including the approval of at least two (2) of the Preferred Directors, to be exempt from the registration requirements definition of the New Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Dateand issued or issuable in connecting with sponsored research, except (i) the granting of options collaboration, technology license, development, OEM, marketing or warrants to employeesother similar agreements or strategic partnerships, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3approved by the Board of Directors, including the approval of at least two (iii2) Put Shares, of the Preferred Directors;
(ivx) shares of Common Stock issued to suppliers or third party service providers in connection with the capitalization provision of goods or creation services pursuant to transaction approved by the Board of a joint venture with a strategic partner Directors, including the approval of at least two (a Person whose business is primarily that 2) of investing and selling of securities shall not be deemed a strategic partner), the Preferred Directors;
(vxi) shares issued to pay part of Common Stock or all Preferred Stock of Xtent which are otherwise excluded by the affirmative vote or consent of the purchase price for the acquisition by the Company holders of a Person at least sixty percent (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice"60%) of its intention the Preferred Stock then outstanding; and
(xii) any right, option or warrant to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail acquire any security convertible into the proposed terms securities excluded from the definition of such Subsequent Financing, the amount of proceeds intended New Securities pursuant to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and subsections (Bi) the Investor shall not have notified the Company by 5:00 p.m. through (Salt Lake City timexi) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeabove.
Appears in 2 contracts
Sources: License Agreement (Xtent Inc), License Agreement (Xtent Inc)
Right of First Refusal. The (a) From the date hereof until the first anniversary of the effective date of the Registration Statement (plus one additional day for each Trading Day following the Effective Date of any Registration Statement during which either (1) the Registration Statement is not effective or (2) the prospectus forming a portion of the Registration Statement is not available for the resale of all Registrable Securities (as defined in the Registration Rights Agreement)), the Company shall will not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other dispositiondisposition of) any of its or its Subsidiaries' equity or equity-equity equivalent securities securities, including, without limitation, any debt, preferred stock or those other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of its Affiliates Common Stock or Common Stock Equivalents (any such offer, sale, grant, disposition or announcement being referred to as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent FinancingPlacement") unless the Company shall have first complied with this Section 4.14. If the Company desires to sell any securities it shall deliver to each of the Investors a written notice to such effect specifying the general terms of the offering the Company desires to make and for a period of 180 days at least twenty Business Days after the Effective Date, except (i) giving of such notice the granting Company agrees to negotiate in good faith with any Investors responding to such notice the terms of options or warrants to employees, officers and directors, and the issuance a sale of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, ’s securities to such responding Investors.
(iib) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with In the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily event that of investing and selling of securities the Company shall not be deemed a strategic partner), (v) shares issued to pay part or all receive an unsolicited offer regarding the purchase of the purchase price for the acquisition by Company’s securities, the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers deliver to the each Investor hereunder a written notice (the "Subsequent Financing Offer Notice") of its intention to effect such any proposed or intended issuance or sale or exchange (the "Offer") of the securities being offered (the "Offered Securities") in a Subsequent FinancingPlacement, which Subsequent Financing Offer Notice shall (v) identify and describe in reasonable detail the proposed Offered Securities, (w) specify the price and other terms of such Subsequent Financingupon which the Offered Securities are to be issued, sold or exchanged, and the number or amount of proceeds intended the Offered Securities to be raised thereunderissued, sold or exchanged, (x) identify the Person persons or entities (to the extent known) to which or with whom which the Offered Securities are to be offered, issued, sold or exchanged and (y) offer to issue and sell to or exchange with such Subsequent Financing Investors all of the Offered Securities, allocated among such Investors (i) based on such Investor's pro rata portion of the total Investment Amount hereunder (the "Basic Amount"), and (ii) with respect to each Investor that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Investors as such Investor shall indicate it will purchase or acquire should the other Investors subscribe for less than their Basic Amounts (the "Undersubscription Amount"), which process shall be affectedrepeated until the Investors shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(c) To accept an Offer, and attached in whole or in part, such Investor must deliver a written notice to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on prior to the end of the fifth (5th) Trading Business Day after its such Investor's receipt of the Subsequent Financing Offer Notice (the "Offer Period"), setting forth the portion of such Investor's Basic Amount that such Investor elects to purchase and, if such Investor shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Investor elects to purchase (in either case, the "Notice of Acceptance"). If the Basic Amounts subscribed for by all Investors are less than the total of all of the Basic Amounts, then each Investor who has set forth an Undersubscription Amount in its willingness Notice of Acceptance shall be entitled to enter into or otherwise provide purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (or the "Available Undersubscription Amount"), each Investor who has subscribed for any Undersubscription Amount shall be entitled to cause its designee purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Investor bears to provide)the total Basic Amounts of all Investors that have subscribed for Undersubscription Amounts, subject to completion rounding by the Company to the extent its deems reasonably necessary.
(d) The Company shall have twenty Business Days from the expiration of mutually acceptable documentationthe Offer Period above to (i) offer, financing issue, sell or exchange the Offered Securities as to which a Notice of Acceptance has not been given by the Investors (the “Refused Securities”) but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company on substantially the terms than those set forth in the Offer Notice and (ii) to publicly announce (a) the execution of such Subsequent Financing NoticePlacement Agreement (as defined below), and (b) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the Commission on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto. If the Investor shall fail to notify no disclosure has been made by the Company by the end of the twenty Business Day period referred to in this subsection (d), the Subsequent Placement shall be deemed to have been abandoned and the Investors shall no longer be deemed to be in possession of any non-public information with respect to the Company. The purchase by the Investors of any Offeree Securities is subject in all cases to the preparation, execution and delivery by the Company and the Investors of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Investors and their respective counsel (such agreement, the “Subsequent Placement Agreement.”)
(e) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in this Section 4.15), then each Investor may, at its intention sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to enter into an amount that shall be not less than the number or amount of the Offered Securities that such negotiations within Investor elected to purchase pursuant to Section 4.15(c) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Investors pursuant to Section 4.15(c) above prior to such time periodreduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Investor so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may effect not issue, sell or exchange more than the Subsequent Financing substantially reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Investors in accordance with Section 4.15(b) above.
(f) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Investors shall acquire from the Company, and the Company shall issue to the Investors, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 4.15(e) above if the Investors have so elected, upon the terms and conditions specified in the Offer.
(g) Any Offered Securities not acquired by the Investors or other persons in accordance with Section 4.15(d) above may not be issued, sold or exchanged until they are again offered to the Persons Investors under the procedures specified in this Agreement.
(or Affiliates of such Personsh) set forth In exchange for the Company’s willingness to agree to these procedures, each Investor hereby irrevocably agrees that it will hold in strict confidence any and all Offer Notices, the Subsequent Financing Notice; providedinformation contained therein, and the fact that the Company shall provide is contemplating a Subsequent Placement, until such time as the Investor with a second Subsequent Financing Notice, and Company is obligated to make the Investor shall again have the right of first refusal set forth above in this disclosures required by Section 6.13 (a4.15(d), if or unless it notifies the Subsequent Financing subject Company in writing that it no longer desires to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticereceive Offer Notices.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Discovery Technologies Inc), Securities Purchase Agreement (Discovery Technologies Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, Investor offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent FinancingSUBSEQUENT FINANCING") for a period of 180 days one year after the Effective Date, except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter hereafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.34(c), (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (viv) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ), and (viv) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written ------ notice (the "Subsequent Financing NoticeSUBSEQUENT FINANCING NOTICE") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that PROVIDED THAT the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty thirty (6030) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person disclosed on Schedule 4(c).
Appears in 2 contracts
Sources: Investment Agreement (Locateplus Holdings Corp), Investment Agreement (Locateplus Holdings Corp)
Right of First Refusal. The (a) If, after the Initial Investment, any Securities shall exist and the Company proposes to issue any Stock (including, without limitation, convertible debt) or any security convertible into or exchangeable for Stock, or any unit of securities which includes Stock or any -127- 133 security convertible into or exchangeable or exercisable for Stock (in the case of securities convertible into or exchangeable or exercisable for Stock, whether or not so convertible or exchangeable or exercisable only upon payment of additional consideration) but excluding Securities issuable pursuant to the Securities Purchase Agreements, then the Company shall notfirst offer such Stock or securities to the Investors (excluding Non-Participating Investors). Such offer shall be made by written notice, directly which notice shall (i) be delivered by hand or indirectlyby first-class, without certified or overnight mail, postage prepaid, or by telecopier, by the prior written consent Company to such Investors and (ii) set forth the quantity and description of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended security proposed to be exempt from issued and the registration requirements of the Securities Act (a "Subsequent Financing") price to be received in exchange therefor. Each such Investor shall thereupon be entitled, for a period of 180 30 days after the Effective Datedate of such notice to purchase at the price and upon the terms set forth in such notice, except that proportion of securities proposed to be issued as the number of Securities held by such Investor bears to the total number of Securities then held by all such Investors. The rights granted to such Investors hereby may be exercised in whole or in part and shall be exercised by the tender of an official bank or certified check for the appropriate amount to the Company by hand delivery or by first-class, certified or overnight mail, postage prepaid addressed to the Company's principal office (or at such other place as the Company may designate) within 30 days after being notified of the availability of such rights pursuant hereto. Within five days after the receipt of such official bank or certified check, the Company shall issue and deliver to such Investors who are exercising the rights granted by this Section 3 the securities being purchased. The Company covenants and agrees that all securities which may be issued upon the exercise of the rights granted hereby will, upon issuance and payment therefor, be duly and validly issued and outstanding, fully paid and non-assessable and free from all taxes, liens, and charges with respect to the issue thereof. The Company further covenants and agrees that during the period within which any such rights (and any conversion right inuring in any security acquired pursuant to any such rights) may be exercised, the Company will in the case where the Company issues Stock, at all times have authorized and reserved for the purpose of issuance upon exercise of such rights (including conversion rights) a sufficient number of shares of Stock of an appropriate class and, if applicable, series, to provide for the exercise in full of such rights (including conversion rights).
(b) If any Investor entitled to exercise rights under Subsection (a) of this Section 3 does not exercise the rights granted hereunder, in whole, after being notified of the availability of such rights, the Company shall so advise the other Investors entitled to rights hereunder who have purchased securities pursuant to this Section 3 by providing them with written notice, transmitted as aforesaid within five days after the first to occur of (i) being advised of the granting failure of options a Investors to exercise such right or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise the expiration of any currently outstanding warrants and upon conversion the 30-day period in which such right could have been exercised. Each such other Investor shall thereupon for a period of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with 7 days from the capitalization or creation date of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not such notice be deemed a strategic partner), (v) shares issued entitled to pay part purchase some or all of the purchase price for the acquisition securities which could have been purchased by the Company of a Person Investors who did not exercise the rights granted under Subsection (which, for purposes a) of this clause (v)Section 3; provided, shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securitieshowever, unless (A) the Company delivers that to the extent that more than one such other Investors exercising its rights granted under this Subsection (b) desires to -128- 134 purchase securities exceeding that proportion as the number of securities of which such other Investors is then the Investors bears to the total number of then held by all such other Investor a written notice who are exercising their rights under Subsection (the "Subsequent Financing Notice"a) of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financingthis Section 3 ("Excess Securities"), the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing Excess Securities which each such other Investors shall be affected, and attached entitled to which purchase shall be a term sheet or similar document relating thereto and (B) reduced pro rata in accordance with that proportion as the number of securities of which such other Investor is then the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing bears to the Company on substantially total number of securities then held by all such other Investor desiring to purchase Excess Securities pursuant to this Subsection (b). The rights granted by this Subsection (b) shall be exercisable in the manner described in Subsection (a) of this Section 3. Any securities not so purchased may be sold during the 90-day period following the aforementioned 7-day period to Persons other than Investors who are entitled to exercise rights under Subsection (a) of this Section 3 for the price and upon the terms set forth in the Subsequent Financing Notice. If notice first sent pursuant to said Subsection (a).
(c) Notwithstanding the foregoing provisions of this Section 3, any purchase pursuant hereto of Securities may be made by an Investor only of full units and not of fractions of units, any fraction to be rounded up to the nearest whole unit and a Non-Participating Investor shall fail not be entitled to notify exercise any rights pursuant to Section 3 from and after the date on which it becomes a Non-Participating Investor.
(d) The provisions of this Section 3 shall not apply to (A) Stock issued in connection with a pro rata stock dividend, stock split or in substitution for the capital stock of the Company by reason of any combination, recapitalization, reclassification or consolidation; (B) securities issued in connection with a Sale of the Company in which the Investors will be selling all of their Stock; or (C) capital stock sold in the Initial Public offering.
(e) In the event any subsidiary ever proposes to issue and/or sell any Stock of the Company or a Subsidiary (including its intention own shares) or any securities containing options or rights to acquire any shares of Stock (including, without limitation, convertible debt) to any Person other than the Company or another Subsidiary, then the Company shall first cause such Subsidiary to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice an agreement with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeInvestors substantially similar to this Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Park N View Inc), Securities Purchase Agreement (Park N View Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, Investor offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent Financing") for a period of 180 days one year after the Effective Date, except (i) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares Shares upon exercise of options granted, under any stock option plan heretofore or hereinafter hereafter duly adopted by the Company, Company or for services rendered or to be rendered; (ii) shares Shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.3, 4(c); (iii) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner partner; (a Person whose business is primarily that of investing and selling of iv) securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ); and (viv) shares securities issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto thereto; and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into provide such negotiations financing within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, provided that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) thirty Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person disclosed on Schedule 4(c).
Appears in 2 contracts
Sources: Investment Agreement (Human Biosystems Inc), Investment Agreement (Human Biosystems Inc)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the InvestorInvestor which will not be unreasonably withheld, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity Common Stock or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction convertible into Common Stock at a price that is intended to be exempt from less than the registration requirements market price of the Securities Act Common Stock at the time of issuance of such security or investment (a "Subsequent Financing") for a period of 180 days one year after the Effective Date, except (iI) the granting of options or warrants to employees, officers officers, directors and directorsconsultants, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter hereafter duly adopted by the Company, Company or for services rendered or to be rendered; (iiII) shares issued upon exercise of any currently outstanding warrants or options and upon conversion of any currently outstanding convertible debenture or convertible preferred stock stock, in each case disclosed in pursuant to Section 4.3, 4(c); (iiiIII) Put Shares, (iv) shares securities issued in connection with the capitalization or creation of a joint venture with a strategic partner partner; (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (vIV) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person another entity (which, for purposes of this clause (viv), shall not include an individual or group of individuals) ); and (viV) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person person with whom such Subsequent Financing shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto thereto; and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City New York time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice; (VI) to enter into a loan, credit or lease facility with a bank or financing institution. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, then the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, provided that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a)Section, if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) thirty Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate Notice. The rights granted to Investor in this Section are not subject to any prior right of such Person) identified in the Subsequent Financing Noticefirst refusal given to any other person disclosed on Schedule 4(c).
Appears in 2 contracts
Sources: Investment Agreement (Nighthawk Systems Inc), Investment Agreement (B2Digital, Inc.)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant Participant may not accept any option offer to purchase, or otherwise dispose of (or announce any offer, sale, grant purchase all or any option portion any Stock owned by the Participant that was acquired pursuant to purchase or other dispositionthis Agreement unless such offer is in writing, for cash, irrevocable by its terms for at least thirty (30) days, and bona fide as determined by the Committee in good faith. If the Participant desires to accept any of its equity or equity-equivalent securities or those of its Affiliates (as defined such offer from any prospective purchaser, the Participant shall give notice in Rule 405 under writing to the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except Company (i) designating the granting number of options or warrants shares of Stock to employeesbe sold, officers and directors(ii) naming the prospective purchaser of such shares of Stock, and (iii) specifying the issuance offer price and other terms upon which the Participant may sell the shares pursuant to the offer. During the 30-day period following receipt of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted such notice by the Company, the Company shall have the right to purchase from the Participant all (iibut not less than all) of the shares issued upon exercise of any currently outstanding warrants Stock specified in such notice at the offer price and upon conversion of any currently outstanding convertible preferred stock the terms specified in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities offer. The rights provided hereunder shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition exercised by the Company by written notice to the Participant. If such rights are exercised, the Company shall deliver to the Participant a certified or bank check for the specified offer price, payable to the order of a Person (whichthe Participant, for purposes and/or appropriate evidence of this clause (v), shall not include an individual or group the cancellation of individuals) and (vi) shares issued in a bona fide public offering any indebtedness owed by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers Participant to the Investor a written notice (Company, in either case against delivery of certificates or other instruments representing the "Subsequent Financing Notice") shares of its intention to effect such Subsequent FinancingStock so purchased, which Subsequent Financing Notice shall describe in reasonable detail appropriately endorsed by the proposed terms of such Subsequent Financing, Participant. At any time during the amount of proceeds intended to be raised thereunder, 30 days following the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt expiration unexercised of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time Company’s 30-day purchase rights period, the Company Participant may effect the Subsequent Financing substantially upon the terms and sell such Stock, but only to the Persons (or Affiliates of such Persons) set forth purchaser identified in the Subsequent Financing Notice; providednotice to the Company, that at the Company shall provide the Investor with a second Subsequent Financing Noticeprice, and on the Investor shall again other terms, specified in the notice, provided that such purchaser must have the first agreed in writing to be bound by a right of first refusal set forth above in favor of the Company substantially similar to the provisions of this Section 6.13 (a)14(b) of this Agreement, if the Subsequent Financing subject as well as to the initial Subsequent Financing Notice shall not have been consummated for any reason restrictions on the terms set forth a sale in such Subsequent Financing Notice within sixty (60) Trading Days after the date connection with a public offering contained in Section 11 of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticethis Agreement.
Appears in 2 contracts
Sources: Restricted Stock Agreement (Bidgive International Inc), Restricted Stock Agreement (Bidgive International Inc)
Right of First Refusal. The Company shall notExcept as specified in the last sentence of this Section 6.1(a), directly with respect to a right of first refusal applying only to Shares held by RSK Holdings (BVI) Limited (“RSK”) and DVK Holdings (BVI) Limited (“DVK”), as amongst those two Existing Shareholders (or indirectlyany Permitted Transferee of such two Existing Shareholders), without in the prior written consent event that any Shareholder desires to Transfer all or a portion of the Investor, offer, sell, grant any option Shares held by such Shareholder (the “Selling Shareholder”) pursuant to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering offer by any Person (“Offeror”), the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor Selling Shareholder shall immediately deliver a written notice (“Offer Notice”) to all other Shareholders (the "Subsequent Financing Notice"“Other Shareholder”) of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe describing accurately and in reasonable detail the proposed terms and conditions of such Subsequent Financingthe offer, including the timing as to execution, the amount number of proceeds intended Shares subject to the offer (the “Offer Shares”) and the price to be raised thereunderpaid for such Shares pursuant to such offer, the Person with whom name and address of the Offeror, any agreements or documents to be executed and delivered relating to such Subsequent Financing shall be affectedoffer, any related terms and attached to which shall be a term sheet or similar document relating thereto conditions and (B) any additional information reasonably required by the Investor Other Shareholder. Notwithstanding any provision of this Agreement, the Selling Shareholder shall not have notified Transfer the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt Offer Shares to, or enter into any binding agreement in respect of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time periodOffer Shares with, the Company may effect the Subsequent Financing substantially upon Offeror unless and until the terms and requirements of Section 6.1(b) through (h) are satisfied. Notwithstanding the other terms of this Section 6.1(a) and in priority to those terms, the Persons (or Affiliates Parties agree and acknowledge that RSK and DVK have agreed amongst themselves that each of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company them shall provide the Investor with have a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in upon the proposed transfers of Shares held by the other, and that such first refusal shall be upon the same terms, mutatis mutandis, as provided amongst all Shareholders under this Section 6.13 6.1 (asave that RSK and DVK may elect to purchase some but not all of the Offer Shares), if except that it shall only apply with respect to RSK and DVK, or to any transferee or shareholder of RSK or DVK which is a family member or entity controlled by a family member of the Subsequent Financing subject to the initial Subsequent Financing Notice shareholder of RSK and DVK (such person a “Permitted Transferee”), and only after satisfaction of this right between RSK and DVK (or a Permitted Transferee) shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty of this Section 6.1(a) apply to each of them (60) Trading Days after the date of the initial Subsequent Financing Notice and then only with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticerespect to Shares not transferred pursuant to this sentence).
Appears in 2 contracts
Sources: Shareholder Agreement (Phoenix India Acquisition Corp.), Shareholder Agreement (Phoenix India Acquisition Corp.)
Right of First Refusal. The (a) Before any Shares registered in the name of Purchaser may be sold or transferred (including transfer by operation of law), such Shares shall first be offered to the Company shall notat the same price, directly or indirectly, without and upon the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of same terms (or announce any offerterms as similar as reasonably possible), sale, grant or any option to purchase or other dispositionin the following manner:
(i) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act Purchaser shall deliver a notice (a "Subsequent FinancingNotice") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless stating (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its Purchaser's bona fide intention to effect sell or transfer such Subsequent FinancingShares, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified number of such Shares to be sold or transferred, (C) the Company by 5:00 p.m. price for which Purchaser proposes to sell or transfer such Shares, and (Salt Lake City timeD) on the fifth name of the proposed purchaser or transferee.
(5thii) Trading Day Within 30 days after its receipt of the Subsequent Financing Notice, the Company or its assignee may elect to purchase any or all Shares to which the Notice of its willingness to enter into or otherwise provide refers, at the price per share and on the same terms (or terms as similar as reasonably possible) specified in the Notice.
(iii) If all or a portion of the Shares to cause which the Notice refers are not elected to be purchased pursuant to Section 6.1(a)(ii) hereof, Purchaser may sell the Shares not purchased by the Company to any person named in the Notice at the price and terms specified in the Notice or at a higher price, provided that such sale or transfer is consummated within 60 days of the date of said Notice to the Company and, provided further, that any such sale is in accordance with all the terms and conditions hereof. In the event of any transfer by operation of law or other involuntary transfer (including, but not limited to, by will or by the laws of descent or distribution) where there is no price established as a matter of law, the Company shall have the right to repurchase all of the Shares purchased by Purchaser hereunder, at a per Share price equal to the greater of (i) $0.01 or (ii) the fair market value per share ("FMV per Share") as determined in good faith by the Board of Directors of the Company (the "Board") after taking into consideration all relevant factors. In such event, Purchaser (or Purchaser's estate) shall notify the Company promptly after the happening of the event giving rise to the involuntary transfer. Within 30 days after receipt of such notice, the Company or its designee to provide)assignee, subject to completion Section 6.1(b) below, may elect to purchase any or all Shares to which the notice refers.
(b) In the event that Purchaser (or Purchaser's estate) does not agree with the Board's determination of the FMV per Share and Purchaser (or Purchaser's estate) and the Board are unable to agree mutually acceptable documentationon the FMV per Share within ten days from the date on which notice of the Board's determination under the last paragraph of Section 6.1(a) is delivered to Purchaser (or Purchaser's estate), financing to then the Company on substantially FMV per Share will be determined by one or more Qualified Appraisers (as defined below) selected in accordance with the terms set forth procedures in the Subsequent Financing Noticethis Section. If the Investor FMV per Share is to be determined by Qualified Appraisers, then Purchaser (or Purchaser's estate) and the Company will each have the opportunity to appoint, at his or its own expense, a Qualified Appraiser, within five days following the expiration of the ten-day period within which the Purchaser (or Purchaser's estate) and the Company could not mutually agree on the FMV per Share. If either party shall fail to notify appoint a Qualified Appraiser within this five-day period, then the other Qualified Appraiser shall unilaterally establish the FMV per Share by a written opinion. If both parties appoint Qualified Appraisers within this five-day period, these two Qualified Appraisers shall establish the FMV per Share in a single written opinion agreed to by both of them. If these two Qualified Appraisers cannot agree on the FMV per Share within 30 days of the appointment of the latter of them, these two Qualified Appraisers shall together appoint a third Qualified Appraiser whose sole written opinion shall establish the FMV per Share. Any action to be taken by the Company under this Section 6.1 shall be taken by the Board, except that Purchaser (or Purchaser's estate) shall not vote, as a director or shareholder of its intention the Company, and either directly or through an agent or subordinate, with respect to enter into such negotiations within actions. If a third Qualified Appraiser is appointed, the fees and expenses charged by such time periodQualified Appraiser shall be borne equally by Purchaser (or Purchaser's estate) and the Company. The Company will provide such data as any Qualified Appraiser deems necessary or useful in connection with such Appraiser's determination of the FMV per Share. A "Qualified Appraiser" is a professional appraiser or independent certified public accountant who is qualified by experience and ability to appraise the Shares. Within 30 days after the determination of the FMV per Share in accordance with this Section 6.1(b), the Company or its assignee may effect the Subsequent Financing substantially upon the terms and elect to purchase any or all Shares subject to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the Company's right of first refusal set forth above in pursuant to this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice6.1.
Appears in 2 contracts
Sources: Subscription Agreement (Ixia), Subscription Agreement (Ixia)
Right of First Refusal. The Company shall not(a) Subject to clause 14.3(c) below, if Franchisee or any Principal receives an acceptable bona fide offer from a third party to directly or indirectlyindirectly purchase the Franchised Restaurant and/or the Location, without or any portion thereof or interest therein or any asset material to the prior written consent operation of the InvestorFranchised Restaurant or any equity interest in Franchisee (individually and collectively, the “Assets”), Franchisee must give BKE written notice (“Offer Notice”) offering to sell the Assets to BKE or its assignee at the same purchase price and otherwise on substantially the same terms and conditions and setting out the name and address of the prospective purchaser, the price and other terms of the offer, sella copy of the proposed sale agreement for the Assets executed by both Franchisee and purchaser, grant together with such other information and documentation as BKE may request in order to evaluate the offer, including, but not limited to, all exhibits, copies of real estate purchase agreements, proposed security agreements and related promissory notes, assignment documents, leases, deeds, surveys, title insurance commitments and policies and copies of all title exceptions and any option other information BKE may request, a franchise application completed by the prospective purchaser, references, and the opportunity to purchaseinterview the prospective purchaser and/or its officers.
(b) If the consideration offered by the third party is not in cash, Franchisee must offer to sell the Assets to BKE at the fair market value, which, failing agreement between BKE and Franchisee, will be determined by an independent expert mutually agreed to by the parties (if the parties cannot agree on such an expert, then the chairperson of the Treuhandkammer (the Swiss professional organisation of auditors) shall finally appoint such independent expert), and the offer will be deemed to have been made on the date the fair market value is agreed or determined.
(c) A bona fide offer from a third party includes any Transfer consolidation, merger or any other transaction in which legal or beneficial ownership of the franchise granted by this Agreement or any equity interests held by a Principal, is vested in any person other than Franchisee or that Principal, except that a Principal who is not a Co-Debtor may Transfer up to 25% of its ownership interests in Franchisee without complying with the terms and conditions of this clause 14.3.
(d) BKE or its assignee has the right and the option, exercisable within 30 days from receipt of an Offer Notice, and all other requested documentation and information required under clause 14.3(a) (“Offer Period”), to accept the offer. Silence on the part of BKE shall constitute rejection of the offer.
(e) BKE or its assignee may accept the offer contained in the Offer Notice by giving notice of acceptance to Franchisee before the expiration of the Offer Period (“Acceptance Notice”).
(f) The Acceptance Notice may contain terms which vary from the terms of the Offer Notice if the terms upon which BKE or its assignee agrees to buy the Assets are not commercially less favorable to Franchisee than those contained in the Offer Notice. Further, the Acceptance Notice may reject any provision or condition that is inconsistent with Franchisee’s obligations under this Agreement or the effect of which would be to increase the cost to, or otherwise dispose change the economic terms imposed on, BKE or its assignee, as a result of (the substitution of BKE or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates assignee (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing"applicable) for the prospective purchaser. Any such provision or condition is void and unenforceable against BKE.
(g) If Franchisee receives the Acceptance Notice during the Offer Period, Franchisee must sell and BKE or its assignee must purchase the Assets upon the terms and conditions contained in the Offer Notice as such terms may be varied by the Acceptance Notice.
(h) Acceptance will constitute a period of 180 days after binding contract and BKE or its assignee and Franchisee shall complete the Effective Datesale and purchase with all reasonable speed, except subject to (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms closing conditions set forth in the Subsequent Financing proposed sale agreement; (ii) obtaining any necessary consents and estoppels from landlords or others which Franchisee must use best efforts to obtain; and (iii) satisfaction with the results of a due diligence investigation of the Assets, as conducted by BKE or its assignee over a period of not less than 60 days, commencing on the date of the Acceptance Notice.
(i) If BKE rejects Franchisee’s offer to sell the Assets or any portion thereof, as the case may be, Franchisee may conclude the sale to the purchaser named in the Offer on terms not more favorable to the purchaser than those offered to BKE, subject to obtaining the prior consent of BKE as required under this Agreement.
(j) If the sale to the purchaser has not been completed within 90 days of obtaining BKE’s consent, or such longer time as may be reasonably required to obtain the consent of any landlord or other person, BKE may at any time thereafter withdraw its consent to the Transfer by giving written notice to Franchisee. If Franchisee thereafter wishes to proceed with the Investor shall fail to notify sale of the Company of its intention to enter into such negotiations within such time period, Assets on the Company may effect the Subsequent Financing substantially upon the same commercial terms and to the Persons same prospective purchaser, Franchisee is not required comply with this clause 14.3 (Right of First Refusal) but must obtain BKE’s prior consent to the Transfer.
(k) The election by BKE not to exercise its right of first refusal as to any Offer will not affect its right of first refusal as to any subsequent Offer.
(l) If the proposed sale of the Assets includes assets of Franchisee not related to the operation of Burger King Restaurants, BKE or Affiliates its assignee may, at its option, elect to purchase only the assets related to the operation of such Persons) set forth Burger King Restaurants and an equitable purchase price will be allocated to each asset included in the Subsequent Financing Notice; provided, that proposed sale.
(m) Any Transfer or attempted Transfer of the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have interests described in this clause 14.3 without first giving BKE the right of first refusal set forth as described above in shall be void and of no force and effect, and shall constitute a material act of default hereunder and deemed good cause for termination of this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeAgreement.
Appears in 2 contracts
Sources: Development Agreement (Tfi Tab Gida Yatirimlari A.S.), Development Agreement (Tfi Tab Gida Yatirimlari A.S.)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent parties hereto acknowledge that there is an ongoing right of first refusal in favor of the InvestorPlacement Agent, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify that certain placement agency agreement by and between the Company and the Agent, dated April 19, 2023, which shall remain in place until April 21, 2024, and that nothing in this Agreement is intended to, nor shall be deemed to supersede, amend or obviate such right of its intention first refusal. In addition to enter into (and separately from) such negotiations within such time periodongoing right of first refusal, the Company may effect grants the Subsequent Financing substantially upon the terms and to the Persons Placement Agent (or Affiliates of such Personsany affiliate designated by the Placement Agent) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above to act as sole book-running manager, sole underwriter or sole placement agent in any public offering (including at-the-market facility) or private placement or any other capital-raising financing of equity, equity-linked or debt securities, by the Company or any of its subsidiaries, for the period commencing on the date hereof and ending on the 12-month anniversary of the Closing Date. If the Placement Agent or one of its affiliates decides to accept any such engagement, the agreement governing such engagement will contain, among other things, provisions for customary fees for transactions of similar size and nature and the provisions of this Agreement, including indemnification, which are appropriate to such a transaction. Notwithstanding the foregoing, in accordance with FINRA Rule 5110(g)(6)(a), in no event will this right of first refusal have a duration of more than three (3) years from the commencement of sales in this Section 6.13 (aoffering. This right of first refusal shall be subject to FINRA Rule 5110(g)(5)(B), if including that (i) the Subsequent Financing subject right of first refusal may be terminated by the Company for “cause”, which shall include the material failure by the Placement Agent to provide the services contemplated by this Agreement, and (ii) the Company’s exercise of its right of “termination for cause” eliminates any obligations with respect to the initial Subsequent Financing Notice shall not have payment of any termination fee or provision of any right of first refusal. [The remainder of this page has been consummated for any reason on intentionally left blank.] Please confirm that the terms set foregoing correctly sets forth in such Subsequent Financing Notice within sixty (60) Trading Days after our agreement by signing and returning to the date Placement Agents the enclosed copy of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.this Agreement. Very truly yours,
A. G.P./ALLIANCE GLOBAL PARTNERS
Appears in 2 contracts
Sources: Placement Agent Agreement (Allarity Therapeutics, Inc.), Placement Agent Agreement (Allarity Therapeutics, Inc.)
Right of First Refusal. The Company shall notnot issue, directly sell or indirectlyexchange, without the prior written consent agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the InvestorCompany, offerincluding without limitation, sellPreferred Shares, grant (iii) any option to purchasedebt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise dispose of (or announce acquire any offer, sale, grant such equity security or any option such debt security of the Company, unless in each case the Company shall have first offered to sell such securities (the “Offered Securities”) to the Investors (each an “Offeree” and collectively, the “Offerees”) as follows: Each Offeree shall have the right to purchase or other disposition(x) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements portion of the Offered Securities Act as the number of shares of Restricted Stock then held by such Offeree bears to the total number of shares of Common Stock, on a fully diluted basis (the “Basic Amount”) and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a "Subsequent Financing") price and on such other terms as shall have been specified by the Company in a writing delivered to such Offeree (the “Offer”), which Offer shall contain the material terms of the Offer, the prospective other purchasers of such securities, and such Offeree’s Basic Amount and which Offer by its terms shall remain open and irrevocable for a period of 180 twenty (20) business days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its from receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeOffer.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Mevion Medical Systems, Inc.)
Right of First Refusal. The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option hereby grants to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Major Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above to purchase such Major Investor’s pro rata share of New Securities (as defined in this Section 6.13 4.2) which the Company may from time to time propose to sell and issue (athe “Right of First Refusal”). For purposes of the Right of First Refusal, if a Major Investor’s pro rata share (the Subsequent Financing “Pro Rata Share”) shall be determined as follows: a Major Investor’s pro rata share shall be equal to that number or amount of New Securities to be sold multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock issued or issuable to such Major Investor upon conversion of all Preferred Stock owned by such Major Investor (including any shares of Common Stock issued as, or issuable upon the conversion or exercise of any warrant, right or other security that is issued as, a dividend or other distribution with respect to, or in exchange for, or in replacement of, such Preferred Stock) and the denominator of which shall be the total number of shares of the Company’s Common Stock deemed to be outstanding assuming the conversion of all outstanding Preferred Stock. Notwithstanding the foregoing, any Major Investor may, at the time it accepts the Company’s offer, subscribe to purchase any or all of the securities offered (“Oversubscription Securities”) which may be available as a result of the rejection, or partial rejection, of the offer by other Investors. All such Oversubscription Securities shall be allocated on a pro rata basis among those Major Investors subscribing to purchase them. Notwithstanding the foregoing, the Company shall not be required to offer or sell such New Securities to any Major Investor who would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. The Right of First Refusal shall be subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.following provisions:
Appears in 2 contracts
Sources: Investor Rights Agreement (Conatus Pharmaceuticals Inc), Investor Rights Agreement (Conatus Pharmaceuticals Inc)
Right of First Refusal. Subject to the terms and conditions of this Section 10 and applicable securities laws while the Note is outstanding, with the exception of any Indebtedness incurred to Live Oak Banking Company, if the Company proposes to issue any new Indebtedness (a “Subsequent Financing”), the Company shall first offer the Investor the opportunity to provide financing on the terms of such Indebtedness. The Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate among itself and its Affiliates.
10.1 The Company shall not, directly or indirectly, without give notice (the prior written consent of “Offer Notice”) to the Investor, offerstating (a) its bona fide intention to issue such Indebtedness, sell, grant any option and (b) the terms upon which it proposes to purchase, or otherwise dispose of issue such Indebtedness.
10.2 By notification to the Company within two (or announce any offer, sale, grant or any option to purchase or other disposition2) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except date the Offer Notice is received (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner“Notice Termination Time”), (v) shares issued the Investor may elect to pay part or all of provide financing on the purchase price for terms specified in the acquisition by Offer Notice. If the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to receives no such notice from the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms as of such Subsequent FinancingNotice Termination Time, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not be deemed to have notified the Company by 5:00 p.m. that it does not elect to participate in such Subsequent Financing. The closing of any Indebtedness pursuant to this Section 9 shall occur within five (Salt Lake City time5) on the fifth (5th) Trading Day after its receipt days of the Subsequent Financing date that the Offer Notice is given and the date of its willingness the issuance of such Indebtedness pursuant to enter into Section 10.3.
10.3 The Company may, during the five (5) day period following the expiration of the period provided in Section 10.2, issue the remaining portion of such Indebtedness to any Person or otherwise provide (or to cause its designee to provide)Persons at a price not less than, subject to completion of mutually acceptable documentation, financing and upon terms no more favorable to the Company on substantially the terms set forth offeree than, those specified in the Subsequent Financing Offer Notice. If the Investor shall fail to notify the Company of its intention to does not enter into an agreement for the issuance of such negotiations Indebtedness within such time period, or if such agreement is not consummated within thirty (30) days of the Company may effect execution thereof, the Subsequent Financing substantially upon the terms right provided hereunder shall be deemed to be revived and such Indebtedness shall not be issued unless first reoffered to the Persons (or Affiliates of such Persons) set forth Investors in the Subsequent Financing Notice; provided, that the Company shall provide the Investor accordance with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice10.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Castellum, Inc.), Securities Purchase Agreement (Castellum, Inc.)
Right of First Refusal. The Company If, within 12 months immediately ---------------------- following the first purchase of shares of Common Stock pursuant to the Option, Grantee shall not, directly or indirectly, without the prior written consent of the Investor, offer, desire to sell, grant any option to purchaseassign, transfer or otherwise dispose of all or any of the Option or the shares of Common Stock or other securities acquired by it pursuant to the Option, it shall give Issuer written notice of its intent to sell (an "Offeror's Notice") specifying the securities to be sold, the price and the material terms of any agreement relating thereto. An Offeror's Notice may be given at any time. An Offeror's Notice shall be deemed an offer by Grantee to Issuer, which may be accepted within 10 business days of the receipt by Issuer of such Offeror's Notice, on the same terms and conditions and at the same price at which Grantee is proposing to transfer the Option or such shares or other securities. If Issuer (or announce any offerone of its affiliates) exercises its right of first refusal, sale, grant the closing of the purchase of the Option or any option to purchase such shares or other disposition) any securities by Issuer (or one of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Actaffiliates) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 shall take place within 5 business days after the Effective Date, except (i) the granting notice of options or warrants to employees, officers and directors, such exercise and the issuance purchase price shall be paid to Grantee in immediately available funds; provided that at any time prior -------- to the closing of the purchase of the Option or any shares upon exercise or other securities hereunder, Grantee may determine not to sell the Option or such shares or other securities and revoke the Offeror's Notice and, by so doing, cancel Issuer's right of options granted, under any stock option plan heretofore first refusal with respect thereto. If prior notification to or hereinafter duly adopted by the Company, (ii) shares issued upon exercise approval of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued regulatory authority is required in connection with such purchase, Issuer shall promptly file the capitalization required notice or creation application for approval and shall expeditiously process the same (and Grantee shall cooperate with Issuer in the filing of any such notice or application and the obtaining of any such approval) and the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which, as the case may be, (a) the required notification period has expired or been terminated or (b) such approval has been obtained and, in either event, any requisite waiting period shall have passed. In the event of a joint venture with a strategic partner (a Person whose business is primarily that failure or refusal of investing and selling Issuer to purchase all of securities shall not be deemed a strategic partner), (v) shares issued to pay part the Option or all of the shares or other securities covered by an Offeror's Notice or if any regulatory authority disapproves Issuer's proposed purchase price of any portion of the Option or such shares or other securities, Grantee may, within 60 days from the date of the Offeror's Notice (subject to any necessary extension for the acquisition by the Company of a Person (whichregulatory notification, for purposes of this clause (vapproval or waiting periods), shall sell or enter into an agreement to sell all, but not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securitiesless than all, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt portion of the Subsequent Financing Option or such shares or other securities at no less than the price specified in the Offeror's Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company and on substantially the terms no more favorable than those set forth in the Subsequent Financing Offeror's Notice. If The requirements of this Section 16 shall not apply to (a) any disposition under Rule 144 or any other disposition as a result of which a transferee would beneficially own not more than 4.9% of the Investor shall fail outstanding voting power of Issuer, (b) any disposition of Common Stock or other securities by a person to notify whom Grantee has assigned its rights under the Company Option with the consent of its intention Issuer, (c) any sale by means of a public offering registered under the 1933 Act, (d) any transfer to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon a wholly-owned subsidiary of Grantee which agrees in writing to be bound by the terms and to the Persons hereof or (e) any transfer in a tender offer or Affiliates exchange offer or by operation of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with law upon consummation of a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (merger or an Affiliate of such Person) identified in the Subsequent Financing Noticeconsolidation.
Appears in 2 contracts
Sources: Stock Option Agreement (Xoom Inc), Stock Option Agreement (General Electric Co)
Right of First Refusal. 4.1 The Company hereby grants to each Investor, so long as such Investor shall notown at least the Threshold Amount, directly the right of first refusal to purchase a pro rata portion of any New Securities that the Company may, from time to time, propose to sell or indirectlyissue (the "PRO RATA AMOUNT"), without PROVIDED that, in the prior written consent case of a Day Investor, the Threshold Amount shall be determined based upon the aggregate amount of the Company's issued and outstanding Common Stock held by the Day Investors, and FURTHER PROVIDED that, in the case of a Gollust Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to Threshold Amount shall be exempt from determined based upon the registration requirements aggregate amount of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers Company's issued and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted outstanding Common Stock held by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (whichGollust Investors. Each Investor's Pro Rata Amount, for purposes of this clause right of first refusal, is the ratio of (vi) the number of shares of Common Stock then held of record by such Investor, assuming the full conversion into Common Stock of any convertible shares of the capital stock of the Company held by such Investor, to (ii) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities, assuming the conversion into Common Stock of any convertible shares of the Company's capital stock then outstanding.
4.2 The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange any New Securities unless the Company shall deliver to the Investors a written notice of any proposed or intended issuance, sale or exchange of New Securities (the "OFFER"), which Offer shall (i) identify and describe the New Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the New Securities to be issued, sold or exchanged, (iii) identify the persons or entities, if known, to which or with which the New Securities are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or exchange with each of the Investors their respective Pro Rata Amount. Each Investor shall have the right, for a period of thirty (30) days following delivery of the Offer, to purchase or acquire, at a price and upon the other terms specified in the Offer, the number or amount of New Securities described above. The Offer by its terms shall remain open and irrevocable for such 30-day period.
4.3 To accept an Offer, in whole or in part, an Investor must deliver a written notice to the Company prior to the end of the 30-day period of the Offer, setting forth the portion of the Pro Rata Amount that such Investor elects to purchase (the "NOTICE OF ACCEPTANCE").
4.4 The Company shall have ninety (90) days from the expiration of the period set forth in SECTION 4.2 above to issue, sell or exchange all or any part of such New Securities as to which a Notice of Acceptance has not include been given by an individual Investor (the "REFUSED SECURITIES"), but only to the offerees or group purchasers (if identified) and only upon terms and conditions (including, without limitation, unit prices and interest rates) which are described in the Offer.
4.5 In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in SECTION 4.4 above), then an Investor may, at its sole option and in its sole discretion, reduce the number or amount of individualsthe New Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the New Securities that such Investor elected to purchase pursuant to SECTION 4.3 above multiplied by a fraction, (i) the numerator of which shall be the number or amount of New Securities the Company actually proposes to issue, sell or exchange (including New Securities to be issued or sold to Investor pursuant to SECTION 4.3 above prior to such reduction) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (Aii) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") denominator of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet the number or similar document relating thereto and (B) the Investor shall not have notified amount of all New Securities that the Company by 5:00 p.m. (Salt Lake City time) on initially proposed to offer, sell or exchange as described in the fifth (5th) Trading Day after Offer. In the event that an Investor so elects to reduce the number or amount of New Securities specified in its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time periodAcceptance, the Company may effect not issue, sell or exchange more than the Subsequent Financing substantially reduced number or amount of the New Securities unless and until such securities have again been offered to the Investors in accordance with SECTION 4.2 above.
4.6 Upon the closing of the issuance, sale or exchange of all or less than all the Refused Securities and the payment in full therefor by the Investor(s) to the Company in immediately available funds, the Investor(s) shall acquire from the Company, and the Company shall issue to the Investor(s), the number of New Securities specified in the Notices of Acceptance, as reduced pursuant to SECTION 4.5 above if the Investor(s) has so elected, upon the terms and conditions specified in the Offer. The purchase by the Investor(s) of any New Securities is subject in all cases to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; providedpreparation, that execution and delivery by the Company shall provide the and each Investor with returning a second Subsequent Financing Notice, Notice of Acceptance of a purchase agreement relating to such New Securities reasonably satisfactory in form and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject substance to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60Investor(s) Trading Days after the date of the initial Subsequent Financing Notice with the Person (and its or an Affiliate of such Person) identified in the Subsequent Financing Noticetheir counsel.
Appears in 2 contracts
Sources: Investor Rights Agreement (Synta Pharmaceuticals Corp), Investor Rights Agreement (Synta Pharmaceuticals Corp)
Right of First Refusal. The Company shall not, directly or indirectly, without (a) Until such time as the prior written consent earlier of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting date that the Company first reports Annual Net Income of options or warrants to employees, officers Fifteen Million Dollars ($15,000,000) and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants the date that the Purchasers and upon conversion of any currently outstanding convertible preferred stock in each case disclosed their respective affiliates described in Section 4.34.7 collectively own less than the Minimum Holdings, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all each of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), Purchasers shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 to purchase all or part of its pro rata share of any New Securities (a)as defined below) which the Company may, if the Subsequent Financing from time to time, propose to sell and issue, subject to the initial Subsequent Financing Notice terms and conditions set forth below. Each Purchaser's pro rata share, for purposes of this Section 4.8, shall equal a fraction, the numerator of which is the number of shares of Common Stock then held by such Purchaser or issuable upon conversion or exercise of any shares of Preferred Stock, the Warrants or other convertible securities, options, rights or warrants then held by such Purchaser, and the denominator of which is the total number of shares of Common Stock then outstanding plus the number of shares of Common Stock issuable upon conversion or exercise of then outstanding Preferred Stock or the Warrants or other convertible securities, option, rights or warrants held by the Purchasers. (b) "New Securities" shall mean any shares of capital stock of the Company whether now authorized or not, and rights, options or warrants to purchase capital stock, and securities of any type whatsoever which are, or may become, convertible into capital stock; provided, however, that the term "New Securities" does not have been consummated include (i) the shares of Preferred Stock and the Warrants issued or issuable to the Purchasers pursuant to the terms of this Agreement or the shares of Common Stock issued or issuable to the Purchasers upon conversion of such securities; (ii) securities issued for the acquisition of another corporation by the Company by merger, purchase of substantially all the assets of such corporation or another reorganization resulting in the ownership by the Company of not less than a majority of the voting power of such corporation; (iii) not more than 4,037,618 shares of Common Stock (such number being subject to adjustment for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date stock dividend, stock split, subdivision, combination or other recapitalization of the initial Subsequent Financing Notice with Common Stock of the Person Company) issued to directors or employees of or consultants to the Company pursuant to the Company's stock option plans and such additional shares of Common Stock that may be issued to employees of or consultants to the Company pursuant to stock option plans approved by a majority of the members of the Company's Board of Directors then in office; (iv) not more than 117,433 shares of Common Stock (such number being subject to adjustment for any stock dividend, stock split, subdivision, combination or an Affiliate other recapitalization of the Common Stock of the Company) issued to employees of the Company pursuant to the Company's employee stock purchase plan; (v) not more than 304,500 shares of Common Stock (such Person) identified in number being subject to adjustment for any stock dividend, stock split, subdivision, combination or other recapitalization of the Subsequent Financing Notice.Common 13
Appears in 2 contracts
Sources: Stock Purchase Agreement (Gatefield Corp), Stock Purchase Agreement (Gatefield Corp)
Right of First Refusal. Subject to the terms and conditions of this Subsection 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Stockholder. A Major Stockholder shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of such Major Stockholder (“Stockholder Beneficial Owners”); provided that each such Affiliate or Stockholder Beneficial Owner (x) is not a Competitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Stockholders and the other parties named therein, as an “Stockholder” under each such agreement (provided that any Competitor or FOIA Party shall not be entitled to any rights as a Major Stockholder under Subsections 3.1, 3.2 and 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Stockholder holding the fewest number of Preferred Stock and any other Derivative Securities.
(a) The Company shall notgive notice (the “Offer Notice”) to each Major Stockholder, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within twenty (20) days after the Offer Notice is given, each Major Stockholder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Major Stockholder (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, without as applicable, of Preferred Stock and any other Derivative Securities then held by such Major Stockholder) bears to the prior written consent total Common Stock of the InvestorCompany then outstanding (assuming full conversion and/or exercise, offeras applicable, sellof all Preferred Stock and other Derivative Securities). The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of one hundred and twenty (120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Subsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Subsection 4.1(b), grant the Company may, during the ninety (90) day period following the expiration of the periods provided in Subsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any option Person or Persons at a price not less than, and upon terms no more favorable to purchasethe offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or otherwise dispose if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Stockholders in accordance with this Subsection 4.1.
(or announce any offer, sale, grant or any option d) The right of first offer in this Subsection 4.1 shall not be applicable to purchase or other disposition(i) any of its equity or equity-equivalent securities or those of its Affiliates Exempted Securities (as defined in Rule 405 under the Securities ActRestated Certificate); (ii) shares of Common Stock issued in any transaction that is intended to be exempt from the registration requirements of the Securities Act IPO; and (a "Subsequent Financing"iii) for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued Series D Preferred Stock to pay part or all Additional Purchasers pursuant to Subsection 1.3 of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticePurchase Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (Finch Therapeutics Group, Inc.), Stockholders Agreement (Finch Therapeutics Group, Inc.)
Right of First Refusal. The For the term specified in Section 2 of this Agreement and subject to subsections (b), (c) and (d) of this Section 1, each Grantor hereby grants to the Company a right of first refusal as follows:
(a) Grantor shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant not enter into any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option agreement to purchase or other disposition) any invest in a business whose primary operations are in Southeast Asia having a value equal to or in excess of its equity or equity-equivalent securities or those 80% of its Affiliates the amount held in the Trust Account (as defined below), as computed in Rule 405 under accordance with standard valuation practices and procedures (such opportunity a “suitable opportunity”), without first presenting such suitable opportunity to the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and Company’s directors, and the issuance of shares upon exercise of options granted, under will not enter into any stock option plan heretofore or hereinafter duly adopted by such agreement until the Company’s directors determine, within the time frame and in the manner specified below, not to pursue such Business Combination opportunity.
(iib) shares issued upon exercise of Notwithstanding anything to the contrary in this Agreement, the Company agrees that any currently outstanding warrants and upon conversion of such business entity with respect to which Grantor has initiated any currently outstanding convertible preferred stock in each case disclosed in Section 4.3contacts or entered into any discussions or negotiations, (iii) Put Sharesformal or informal, (iv) shares issued in connection with regarding Grantor’s acquisition of, or investment in, such business prior to the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all completion of the purchase price for the acquisition by the Company of a Person (whichCompany’s initial public offering, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms as set forth in the Subsequent Financing Notice. If the Investor shall fail Registration Statement, will not be subject to notify Section 1(a) hereof, unless Grantor declines to pursue such business opportunity and notifies the Company of its intention to enter into such negotiations within such time periodthe same in writing.
(c) After review of any potential Business Combination or investment opportunity, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have release the right of first refusal set forth above in this Section 6.13 1(a) hereof with respect to such Business Combination or suitable opportunity. Decisions by the Company to release Grantor to pursue such suitable opportunity will be made by the unanimous vote of the Company’s disinterested directors.
(a), if the Subsequent Financing subject d) Grantor shall provide written notice to the initial Subsequent Financing Notice Company of any such suitable opportunity brought to its attention by its current partners, principals, directors, officers or employees within ten (10) business days of the identification of such suitable opportunity. Any right of first refusal granted shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty expire thirty (6030) Trading Days after days from the date of the initial Subsequent Financing Notice written notice unless earlier released pursuant to Section 1(c), provided that, during such thirty (30)-day period, the Company has failed to commence discussions regarding a Business Combination with such suitable opportunity. The Company shall notify the Person (or an Affiliate Grantor as soon as reasonably practicable within such 30-day period if it has commenced discussions regarding a Business Combination with such suitable opportunity, in which case the relevant period of exclusivity shall be tolled indefinitely, until the Company releases such Person) identified in the Subsequent Financing Noticesuitable opportunity pursuant to Section 1(c).
Appears in 1 contract
Right of First Refusal. The Company agrees to provide the Buyer with a right of first refusal with respect to subsequent financings, as follows: The Company shall not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of Buyer (or announce any offer, sale, grant or any option to purchase or other dispositionwhich consent shall not be unreasonably withheld) sell any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any a transaction that is intended to be exempt from the or not subject to registration requirements of under the Securities Act (a "Subsequent FinancingPlacement") for a period of 180 days after the Effective Dateuntil June ___, except 2001 other than (iv) the granting of options or warrants to employees, consultants, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (iiw) shares issued of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3securities of the Company, (iii) Put Shares, (ivx) shares of Common Stock issuable upon conversion of the Series A or B Preferred Shares or any warrants issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner)therewith, (vy) any transaction for the primary benefit of any person or entity other than the Company such as Electronic Medical Distribution, Inc. or any other subsidiary or affiliate of the Company and (z) shares of Common Stock and other securities issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individualsi) in connection with mergers and acquisitions and (viii) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securitiesto strategic investors, unless (A) the Company delivers to the Investor Buyer a written notice (the "Subsequent Financing Placement Notice") of its intention to effect such Subsequent FinancingPlacement, which Subsequent Financing Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent FinancingPlacement, the amount of proceeds intended to be raised thereunder, the Person entity with whom which such Subsequent Financing Placement shall be affectedeffected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor Buyer shall not have notified the Company by 5:00 5:30 p.m. (Salt Lake New York City time) on the fifth (5th) Trading Day third business day after its receipt the delivery of the Subsequent Financing Placement Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Financing Placement Notice. If the Investor Buyer shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice.its
Appears in 1 contract
Sources: Securities Purchase Agreement (Bioshield Technologies Inc)
Right of First Refusal. The Company shall notFrom the Closing Date until the later of (i) the date on which the Notes are no longer outstanding, directly or indirectly, without (ii) twelve (12) months following the prior written consent completion of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates Reservation (as defined in Rule 405 under Section 9(w) herein), the Securities ActSubscribers shall be given not less than three (3) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 business days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise prior written notice of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering proposed sale by the Company of its Common Stock or other securities or equity linked debt obligations (“Other Offering”), except in connection with (i) the Company’s issuance of securities as full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of a corporation or other entity which holders of such securities or debt are not at any time granted registration rights, (ii) the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital and which holders of such securities or debt are not at any time granted registration rights, (iii) the Company’s issuance of Common Stock or the issuances or grants of options to purchase Common Stock to employees, directors, and consultants, pursuant to plans described on Schedule 5(d), (iv) the Company’s issuance of securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into shares of its stockholders'Common Stock issued and outstanding on the date of this Agreement on the unamended terms in effect on the Closing Date or securities issued pursuant to subpart (iii) securitieshereof, unless (v) as a result of the exercise of Warrants or conversion of Notes which are granted or issued pursuant to this Agreement, (vi) a limited amendment in connection with the Company’s February 2010 PIPE transaction exclusively to (A) issue to each Subscriber (as such term is defined in that certain Subscription Agreement, dated February 2, 2010, by and between the Company delivers and the Subscribers set forth on the signature page thereto) one unit (each such unit, a “New Unit”) consisting of one share of Common Stock and one warrant to purchase one share of Common Stock at an exercise price of not less than $0.30 for each share of Common Stock such Subscriber was issued in the Company’s February 2010 PIPE transaction, (B) amend the warrant issued to each Subscriber (as such term is defined in that certain Subscription Agreement, dated February 2, 2010, by and between the Company and the Subscribers set forth on the signature page thereto) to provide for an exercise price of not less than $0.25 and (C) to terminate that certain Registration Rights Agreement, dated February 2, 2010, by and between the Company and the Holders set forth on Exhibit A attached thereto and no other amendment or changes to the Investor a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of the February 2010 PIPE transaction (collectively, the foregoing (i) through (vi) are “Excepted Issuances”). If Subscribers elect to exercise their rights pursuant to this Section 12(a), the Subscribers shall have the right during the three (3) business days following receipt of the notice, to purchase in the aggregate up to all of such Subsequent Financingoffered Common Stock, debt or other securities in accordance with the terms and conditions set forth in the notice of sale, relative to each other in proportion to the amount of Note Principal issued to them on the Closing Date. Subscribers who participate in such Other Offering shall be entitled at their option to purchase, in proportion to each other, the amount of proceeds intended such Other Offering that could have been purchased by Subscribers who do not exercise their rights hereunder until up to be raised thereunderthe entire Other Offering is purchased by Subscribers. In the event such terms and conditions are modified during the notice period, the Person with whom such Subsequent Financing Subscribers shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates given prompt notice of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company modification and shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right during the three (3) business days following the notice of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject modification to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in exercise such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeright.
Appears in 1 contract
Sources: Subscription Agreement (New Generation Biofuels Holdings, Inc)
Right of First Refusal. The (a) From the date hereof until the one year anniversary of the Effective Date (the "Trigger Date"), the Company shall will not, directly or indirectly, without the prior written consent of the Investor, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other dispositiondisposition of) any of its or its Subsidiaries' equity or equity-equity equivalent securities securities, including without limitation any debt, preferred stock or those other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of its Affiliates Common Stock or Common Stock Equivalents (any such offer, sale, grant, disposition or announcement being referred to as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent FinancingPlacement") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by unless the Company of a Person shall have first complied with this Section 4.14.
(which, for purposes of this clause (v), b) The Company shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers deliver to the each Investor hereunder a written notice (the "Subsequent Financing Offer Notice") of its intention to effect such any proposed or intended issuance or sale or exchange (the "Offer") of the securities being offered (the "Offered Securities") in a Subsequent FinancingPlacement, which Subsequent Financing Offer Notice shall (w) identify and describe in reasonable detail the proposed Offered Securities, (x) describe the price and other terms of such Subsequent Financingupon which they are to be issued, sold or exchanged, and the number or amount of proceeds intended the Offered Securities to be raised thereunderissued, sold or exchanged, (y) identify the Person persons or entities (if known) to which or with whom which the Offered Securities are to be offered, issued, sold or exchanged and (z) offer to issue and sell to or exchange with such Subsequent Financing Investors all of the Offered Securities, allocated among such Investors (a) based on such Investor's pro rata portion of the total Investment Amount hereunder (the "Basic Amount"), and (b) with respect to each Investor that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Investors as such Investor shall indicate it will purchase or acquire should the other Investors subscribe for less than their Basic Amounts (the "Undersubscription Amount"), which process shall be affectedrepeated until the Investors shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(c) To accept an Offer, and attached in whole or in part, such Investor must deliver a written notice to which shall be a term sheet or similar document relating thereto and (B) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on prior to the end of the fifth (5th) Trading Business Day after its such Investor's receipt of the Subsequent Financing Offer Notice (the "Offer Period"), setting forth the portion of such Investor's Basic Amount that such Investor elects to purchase and, if such Investor shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Investor elects to purchase (in either case, the "Notice of Acceptance"). If the Basic Amounts subscribed for by all Investors are less than the total of all of the Basic Amounts, then each Investor who has set forth an Undersubscription Amount in its willingness Notice of Acceptance shall be entitled to enter into or otherwise provide purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (or the "Available Undersubscription Amount"), each Investor who has subscribed for any Undersubscription Amount shall be entitled to cause its designee purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Investor bears to provide)the total Basic Amounts of all Investors that have subscribed for Undersubscription Amounts, subject to completion rounding by the Company to the extent its deems reasonably necessary.
(d) The Company shall have twenty (20) Business Days from the expiration of mutually acceptable documentationthe Offer Period above to (i) offer, financing issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Investors (the "Refused Securities"), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company on substantially the terms than those set forth in the Offer Notice and (ii) to publicly announce (a) the execution of such Subsequent Financing NoticePlacement Agreement (as defined below), and (b) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the Commission on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto. If the Investor shall fail to notify no disclosure has been made by the Company by the end of the twenty (20) Business Day period referred to in this subsection (d), the Subsequent Placement shall be deemed to have been abandoned and the Investors shall no longer be deemed to be in possession of any non-public information with respect to the Company.
(e) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in this Section 4.14), then each Investor may, at its intention sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to enter into an amount that shall be not less than the number or amount of the Offered Securities that such negotiations within Investor elected to purchase pursuant to Section 4.14(c) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Investors pursuant to Section 4.14(c) above prior to such time periodreduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Investor so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may effect not issue, sell or exchange more than the Subsequent Financing substantially reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Investors in accordance with Section 4.14(b) above.
(f) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Investors shall acquire from the Company, and the Company shall issue to the Investors, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 4.14(e) above if the Investors have so elected, upon the terms and conditions specified in the Offer. The purchase by the Investors of any Offered Securities is subject in all cases to the Persons preparation, execution and delivery by the Company and the Investors of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Investors and their respective counsel (such agreement, the “Subsequent Placement Agreement”).
(g) Any Offered Securities not acquired by the Investors or Affiliates of such Personsother persons in accordance with Section 4.14(f) set forth above may not be issued, sold or exchanged until they are again offered to the Investors under the procedures specified in this Agreement.
(h) In exchange for the Subsequent Financing Notice; providedCompany’s willingness to agree to these procedures, each Investor hereby irrevocably agrees that it will hold in strict confidence any and all Offer Notices, the information contained therein, and the fact that the Company shall provide is contemplating a Subsequent Placement, until such time as the Investor with a second Subsequent Financing NoticeCompany is obligated to make the disclosures required by Section 4.14(d), and or unless it notifies the Investor shall again have Company in writing that it no longer desires to receive Offer Notices.
(i) Notwithstanding the right of first refusal set forth above in foregoing, this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice 4.14 shall not have been consummated for any reason on the terms set forth apply in such Subsequent Financing Notice within sixty (60) Trading Days after the date respect of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing NoticeExempt Issuance.
Appears in 1 contract
Right of First Refusal. The Company shall notnot issue, directly sell or indirectlyexchange, without the prior written consent of the Investoragree or obligate itself to issue, offer, sell, grant any option to purchasesell or exchange, or otherwise dispose of (reserve or announce set aside for issuance, sale or exchange, any offer, sale, grant or any option to purchase or other disposition) any of its equity or equity-equivalent securities or those of its Affiliates (as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 180 days after the Effective Date, except (i) the granting shares of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the CompanyClass A Common Stock, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3Class B Common Stock, (iii) Put Sharesany other equity security of the Company, including without limitation, shares of Series A Preferred, Series B Preferred or Series C Preferred, (iii) any debt security of the Company (other than a bank line of credit or other Indebtedness for borrowed money from an institutional lender, in each case with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) shares issued in connection with any security of the capitalization Company that is a combination of debt and equity, or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued any option, warrant or other right to pay part subscribe for, purchase or all otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to sell such securities (the "Offered Securities") to the holders of the Series A Preferred, Series B Preferred and the Purchasers (together, the "Investors") as follows: The Company shall offer to sell to each Investor (a) that number of such securities so that, after giving effect to such issuance, such Investor will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice on a fully diluted basis assuming the shares reserved for issuance upon the exercise of options have been issued (the "Basic Amount"), and (b) such additional portion of the Offered Securities as such Investor shall indicate it will purchase should the other Investor subscribe for less than their Basic Amounts (the "Undersubscription Amount"), at a price for the acquisition and on such other terms as shall have been specified by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers writing delivered to the such Investor a written notice (the "Subsequent Financing NoticeOffer") of its intention to effect such Subsequent Financing), which Subsequent Financing Notice Offer by its terms shall describe in reasonable detail the proposed terms remain open and irrevocable for a period of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and twenty (B20) the Investor shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its days from receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Investor shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Investor with a second Subsequent Financing Notice, and the Investor shall again have the right of first refusal set forth above in this Section 6.13 (a), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Noticeoffer.
Appears in 1 contract
Sources: Series C Preferred Stock Purchase Agreement (Furniture Com Inc)
Right of First Refusal. The (a) So long as the Purchasers and their Affiliates beneficially own shares of Common Stock (such amount to include the Preferred Shares and the Warrant Shares without regard to limitations on conversion or exercise) equal to at least fifteen percent (15%) of the shares of Common Stock outstanding on a fully diluted basis (excluding employee stock options) immediately following the Closing Date, if at any time the Company shall notwishes to, directly or indirectly, without the prior written consent of the Investor, offer, (i) sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other dispositiondisposition of) any of its or the Subsidiaries' equity or equity-equity equivalent securities at a price per share less than $8.00 per share, including without limitation any Indebtedness, preferred stock or those other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable for Common Stock or (ii) borrow any funds or otherwise become subject to, whether directly or by way of its Affiliates guarantee or otherwise, any Indebtedness (including capitalized leases and sale/leaseback transactions) (any such action under (i) or (ii) being referred to as defined in Rule 405 under the Securities Act) in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent FinancingTransaction") for a period of 180 days after the Effective Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Section 4.3, (iii) Put Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued pursuant to pay part or all the terms of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by offer received from a third party, the Company shall submit such offer in writing of its (and not the Subsequent Transaction to each of any of its stockholders') securities, unless (A) the Company delivers to the Investor a written notice Purchasers (the "Subsequent Financing Transaction Notice") of its intention to effect such ). The Subsequent Financing, which Subsequent Financing Transaction Notice shall describe in reasonable detail the proposed terms of such Subsequent FinancingTransaction including price of the proposed sale, transfer or issuance, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall Placement is proposed to be affectedeffected, and attached to which shall be a commitment letter, proposal letter, term sheet or similar document relating thereto and (B) thereto. The Subsequent Transaction Notice shall further state that the Investor Purchasers shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness right to enter into or otherwise provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to a Subsequent Transaction for the Company same price and on substantially the same terms and conditions as set forth in the Subsequent Financing Transaction Notice and that if the Subsequent Transaction involves voting securities, the Company will adjust the terms and conditions as set forth in the Subsequent Transaction Notice so that the Purchaser may participate in full without triggering certain rights under the Plan, the Abbott Standstill Agreement or the Abbott Securities Purchase Agreement. Within ten (10) days after receipt of the Subsequent Transaction Notice, each Purchaser shall give notice to the Company of its intent to provide all financing for a Subsequent Transaction (in full) to the Company on a pro rata basis determined by the aggregate amount of Preferred Shares held by each Purchaser on the same terms and conditions as set forth in the Subsequent Transaction Notice. The Company and the Purchasers shall use their commercially reasonable efforts to complete such mutually acceptable documentation by the later of (a) the time frame, as set forth in the commitment letter, proposal letter, term sheet or similar document or (b) 30th day following the date of the delivery of the Subsequent Transaction Notice. If the Investor Purchasers shall fail to so notify the Company of its intention their willingness to enter into such negotiations within such time periodparticipate in the full Subsequent Transaction, the Company shall not be obligated to negotiate with any Purchaser and may effect the such Subsequent Financing substantially upon Transaction on the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Transaction Notice; provided, provided that the Company shall must provide the Investor Purchasers with a second Subsequent Financing Transaction Notice, and the Investor shall Purchasers will again have the right of first refusal set forth above in this Section 6.13 paragraph (ab), if the Subsequent Financing Transaction subject to the initial Subsequent Financing Transaction Notice shall is not have been consummated for any reason on the terms set forth in such Subsequent Financing Transaction Notice within sixty (60) 60 Trading Days after the date of the initial Subsequent Financing Transaction Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Transaction Notice. If the Purchasers indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Transaction Notice, then each Purchaser will be entitled to provide financing pursuant to such Subsequent Transaction Notice up to an amount equal to such Purchaser's pro rata portion of the aggregate purchase price paid for the Securities under this Agreement, but the Company shall not be required to accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Transaction Notice. Notwithstanding the foregoing, the provisions of this Section 4.7(a) shall be subject to any right of first refusal or right of maintenance that the parties to the Series C Preferred Stock Purchase Agreement may have and to any right of maintenance that Abbott Laboratories may have under Section 8.2(a) of the Abbott Secu▇▇▇▇▇▇ Agreement.
(b) The restrictions contained in paragraph (a) of this Section 4.7 shall not apply to: (i) the granting of shares of Common Stock, restricted stock awards or similar equity incentive awards to employees, officers and directors of the Company pursuant to any stock option plan duly adopted by the Company or to the issuance of Common Stock upon exercise of such options or, (ii) the issuance of options, warrants, stock appreciation rights or shares of Common Stock to bona fide consultants of the Company in payment of consulting fees of up to an aggregate of $500,000 in any twelve month period based upon the applicable market price of the Common Stock, (iii) the issuance of warrants or shares of Common Stock in connection with bona fide acquisitions by the Company, (iv) the sale of shares of Common Stock to Abbott Laboratories, or (v) the issuance of shares of Common Stock u▇▇▇ ▇▇ercise of any warrant or option permitted to be issued pursuant to this Section 4.7(d).
(c) The Company shall not create any Lien, claim or encumbrance on any of the Company's properties, except (A) pursuant to financings completed in accordance with the procedures of (a) above, (B) leases of equipment or other property and (C) in the ordinary course of business.
Appears in 1 contract
Sources: Securities Purchase Agreement (I Stat Corporation /De/)